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24–851 PDF 2005

S. HRG. 108–877

OVERSIGHT OF THE

TERRORISM RISK INSURANCE PROGRAM

HEARING

BEFORE THE

COMMITTEE ON

BANKING, HOUSING, AND URBAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

ON

THE TERRORISM RISK INSURANCE PROGRAM, WHICH ESTABLISHED A

TEMPORARY FEDERAL PROGRAM OF SHARED PUBLIC AND PRIVATE

COMPENSATION FOR INSURED COMMERCIAL PROPERTY AND CASUALTY LOSSES RESULTING FROM ACTS OF TERRORISM COVERED BY

THE TERRORISM RISK INSURANCE ACT

MAY 18, 2004

Printed for the use of the Committee on Banking, Housing, and Urban Affairs

(

Available at: http://www.access.gpo.gov/congress/senate/senate05sh.html

COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS

RICHARD C. SHELBY, Alabama, Chairman

ROBERT F. BENNETT, Utah

WAYNE ALLARD, Colorado

MICHAEL B. ENZI, Wyoming

CHUCK HAGEL, Nebraska

RICK SANTORUM, Pennsylvania

JIM BUNNING, Kentucky

MIKE CRAPO, Idaho

JOHN E. SUNUNU, New Hampshire

ELIZABETH DOLE, North Carolina

LINCOLN D. CHAFEE, Rhode Island

PAUL S. SARBANES, Maryland

CHRISTOPHER J. DODD, Connecticut

TIM JOHNSON, South Dakota

JACK REED, Rhode Island

CHARLES E. SCHUMER, New York

EVAN BAYH, Indiana

ZELL MILLER, Georgia

THOMAS R. CARPER, Delaware

DEBBIE STABENOW, Michigan

JON S. CORZINE, New Jersey

KATHLEEN L. CASEY, Staff Director and Counsel

STEVEN B. HARRIS, Democratic Staff Director and Chief Counsel

DOUG NAPPI, CHIEF COUNSEL

MARK F. OESTERLE, Counsel

SARAH A. KLINE, Democratic Counsel

JOSEPH R. KOLINSKI, Chief Clerk and Computer Systems Administrator

GEORGE E. WHITTLE, Editor

(II)

CONTENTS

TUESDAY, MAY 18, 2004

Page

Opening statement of Chairman Shelby ................................................................ 1

Opening statements, comments, or prepared statements of:

Senator Johnson ............................................................................................... 2

Senator Bennett ................................................................................................ 3

Senator Reed ..................................................................................................... 3

Senator Allard ................................................................................................... 3

Senator Sarbanes .............................................................................................. 4

Senator Bunning ............................................................................................... 5

Senator Dodd .................................................................................................... 6

Senator Carper ................................................................................................. 18

Senator Schumer .............................................................................................. 21

Prepared statement ................................................................................... 37

Senator Nelson .................................................................................................. 37

WITNESSES

Brian C. Roseboro, Under Secretary for Domestic Finance, U.S. Department

of the Treasury ..................................................................................................... 8

Prepared statement .......................................................................................... 39

Donna Lee Williams, Delaware Commissioner of Insurance, on behalf of the

National Association of Insurance Commissioners ........................................... 24

Prepared statement .......................................................................................... 42

Richard J. Hillman, Director, Financial Markets and Community Investment,

U.S. General Accounting Office .......................................................................... 27

Prepared statement .......................................................................................... 46

J. Robert Hunter, Director of Insurance, Consumer Federation of America ...... 29

Prepared statement .......................................................................................... 67

Response to a written question of Senator Santorum ................................... 99

John J. Degnan, Vice Chairman and Chief Administrative Officer, The Chubb

Corporation, on behalf of Council of Insurance Agents & Brokers, The

Financial Services Roundtable, Independent Insurance Agents & Brokers

of America, National Association of Mutual Insurance Companies, National

Association of Professional Insurance Agents, Property Casualty Insurers

Association of America, Reinsurance Association of America, Surety Association of America, and UWC—Strategic Services on Unemployment &

Workers’ Compensation ....................................................................................... 31

Prepared statement .......................................................................................... 81

Christopher Nassetta, President and Chief Executive Officer, Host Marriott

Corporation, on behalf of the Coalition to Insure Against Terrorism .............. 33

Prepared statement .......................................................................................... 88

Jacques E. Dubois, Chairman and CEO, Swiss Re America Holding ................. 35

Prepared statement .......................................................................................... 97

(III)

(1)

OVERSIGHT OF THE TERRORISM RISK

INSURANCE PROGRAM

TUESDAY, MAY 18, 2004

U.S. SENATE, COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS, Washington, DC.

The Committee met at 10:03 a.m., in room SD–538, Dirksen Senate Office Building, Senator Richard C. Shelby (Chairman of the

Committee) presiding.

OPENING STATEMENT OF CHAIRMAN RICHARD C. SHELBY

Chairman SHELBY. The hearing will come to order. I would like

to thank our panelists for being here this morning.

Today, we are here to examine the Terrorism Risk Insurance

Program. This program was put in place after the horrible events

of September 11, 2001. Clearly, when we think of the events of

September 11, we first think of the tragic and staggering loss of

human life that occurred that day.

While secondary to the human suffering, there was also considerable destruction of physical and financial assets. In the immediate

aftermath, most of these losses were covered by the insurance industry. However, the insurance market had difficulty recovering

and adjusting to the realities of the post-September 11 world. Many

firms had depleted their reserves in meeting their significant liabilities. Going forward, the industry had to confront the difficulty of

recapitalizing in the face of future terrorist acts. The lack of certainty caused significant dislocations to the insurance markets—

most notably, due to the disappearance of reinsurance coverage.

These problems, as policyholders soon became aware throughout

the country, had a direct impact on both the cost and availability

of insurance.

The TRIA Program, which created a backstop using the resources

of the Federal Government, was established to stabilize the insurance markets. It was meant to be a short-term fix, intended to fill

the gap while the private sector developed response to the potential

loss from the terror attacks. The program is now in the second year

of its 3-year term. While our discussions about the operation of the

program can only be hypothetical, and hopefully will always only

be hypothetical, it is a very important part of our oversight responsibilities to discuss and to examine it before we may ever need to

rely on it.

I look forward to hearing from the witnesses, and I thank all of

you for being here today.

Senator Johnson, do you have an opening statement?

2

STATEMENT OF SENATOR TIM JOHNSON

Senator JOHNSON. Yes, I do. Thank you, Chairman Shelby. I appreciate your work and Ranking Member Sarbanes’ efforts for holding today’s hearing on terrorism risk insurance. I am sure we all

share the same feeling of relief since we passed the Terrorism Risk

Insurance Act of 2002 following September 11 that, in fact, no

events have triggered the use of this Federal backstop. However,

world events require us to remain vigilant against the possibility

of another major attack. I am pleased that we are directing our attention to this program in advance of its expiration next year. This

is a complicated topic, and I look forward to hearing from the witnesses about marketplace developments that may or may not have

taken place to help us consider reauthorization of this program.

I am pleased, Mr. Chairman, at the range of witnesses before us

today. When we first considered this program more than 2 years

ago, then-Chairman Phil Gramm did not mince words expressing

his concern that we not create a permanent Federal program that

would provide a crutch to the insurance industry and prevent the

market from developing independently. While I do not believe that

we have reached that point, I do believe that we should proceed deliberately and gather data from both industry and non-industry

sources to see if reauthorization is really necessary. At the end of

the day, this program is not about the profits of the insurance industry. It is about the ability of American businesses to have access to insurance protection. And for that reason, I believe that any

extension of this program should include ‘‘make-available’’ provisions. That should be the very minimum required of an industry

that enjoys this type of protection that we have provided.

As we begin our deliberations, Mr. Chairman, I want to state at

the outset that I believe very strongly that if we extend this program, group life should be part of that extension. Two years ago,

I worked to include group life insurance in the Terrorism Risk Insurance Program. I was disappointed that the Bush Administration

chose to focus its efforts on insuring buildings against terrorism,

but was dismissive of the critical role that group life insurance

plays for tens of thousands of families at the highest risk of terrorist attack.

We saw vividly post-September 11 the sufferings of so many families. And while the most immediate grieving was for the loss of

human life, the harsh reality is that many families lost their livelihood as well. In a time of loss, a life insurance policy can mean the

difference between having to sell the family home, pulling the kids

out of college, or even, in some cases, having enough money to put

food on the table. It is critical that we create conditions that permit

the private insurance markets to continue to offer group life insurance coverage to employees at high risk of attack.

Since we implemented the Terrorism Risk Insurance Program,

one of the most apparent market shifts has been the near-complete

disappearance of affordable reinsurance for group life policies. Although insurers have continued to offer this valuable coverage up

to this point, even for high-risk concentration locations, we should

pay careful attention to potential solvency issues that could arise

in the case of another major attack.

I look forward to hearing from today’s witnesses.

3

Thank you, Mr. Chairman.

Chairman SHELBY. Senator Bennett.

STATEMENT OF SENATOR ROBERT F. BENNETT

Senator BENNETT. Thank you, Mr. Chairman.

I recall very clearly the effort to get this program in place after

September 11 and the great frustration that I felt when, for a variety of reasons, there was continuing delay in getting it done. I had

the feeling then, which I still believe, that failure to get this done

prolonged the recession and had a contributory effect on the softness of the recovery because a lot of projects that would have been

undertaken had terrorism insurance been in place were delayed.

And I think, as the recovery now has traction and is coming on

very strong, we would make a serious mistake if we allowed this

program to expire. We would have significant economic difficulties

as a result.

I appreciate the hearings, and I look forward to hearing from the

witnesses.

Chairman SHELBY. Senator Reed.

STATEMENT OF SENATOR JACK REED

Senator REED. No statement, Mr. Chairman. I have come to observe and possibly ask questions. Thank you.

Chairman SHELBY. Senator Allard.

STATEMENT OF SENATOR WAYNE ALLARD

Senator ALLARD. Thank you, Mr. Chairman. I want to thank you

for holding this hearing. Many of us were on the Committee when

we enacted the Terrorism Risk Insurance Act, and I appreciate the

opportunity to revisit the program to review its implementation.

I reluctantly supported the legislation passed in 2002. I believe

in free markets, and, thus, I am loath to inject the Federal Government into private markets. I became convinced that the events of

September 11, 2001, were indeed an extraordinary event that required a temporary backstop in order to give the markets time to

adjust. And I emphasize the word ‘‘temporary’’ here.

I came around to supporting the TRIA legislation only after repeated assurances from the industry that this was a one-time

thing, simply buying time for the private markets to regroup.

I do not believe there is an ambiguity as to the Congressional intent that the program should be temporary. In fact, in the conference report, the purpose section begins this way, and I quote

directly out of that section: ‘‘The purpose of this title is to establish

a temporary Federal program that provides for a transparent system of shared public and private compensation for insured losses

resulting from acts of terrorism.’’

Now the industry is back with the same arguments. Once again

we are being told that the markets just need a little more time to

adjust. I am not sure why we should believe it this time, though.

If this is to become a perpetual Government program, like flood insurance, the industry should be honest about it. Then we could

have a legitimate debate about the role of the Federal Government

in the insurance industry rather than threats of market chaos

every few years.

4

I will be following today’s hearing carefully, and I will be interested in hearing what progress industry has made once again letting the free market take control.

Again, Mr. Chairman, thank you for convening the hearing. I

look forward to hearing about this topic.

Chairman SHELBY. Senator Sarbanes.

STATEMENT OF SENATOR PAUL S. SARBANES

Senator SARBANES. Mr. Chairman, I want to thank you for calling the hearing. We are now a little short of halfway through the

life of the Terrorism Risk Insurance Program, and oversight to determine how the program is working is very important.

The Terrorism Risk Insurance Act came out of the work of this

Committee, as a consequence of the September 11 attacks. It

sought to establish a temporary Federal program with two purposes: The first was to ensure continued widespread availability of

affordable property and casualty insurance for terrorism risk; the

second was to create a transitional period, while preserving State

insurance regulation and consumer protections, in which the private insurance markets could stabilize in the wake of the shock of

September 11, resume pricing terrorism insurance, and build the

capacity to absorb any future losses from acts of terrorism.

The Department of the Treasury has the responsibility to implement the Terrorism Risk Insurance Program. That is, I guess, Secretary Roseboro, that is under your jurisdiction now. The Treasury

has the obligation to gather information in a timely and effective

manner about terrorism insurance coverage and pricing. It must

use that information to make a series of determinations and recommendations under the statute.

The most immediate determination is whether to extend to the

program’s third year the requirement that insurers make terrorism

coverage ‘‘available’’ to property and casualty policyholders. And I

welcome Under Secretary Roseboro here in order to discuss that

and other issues.

Mr. Chairman, I am going to have to go to another hearing, and

I intend to return, but I do want to register—and presumably Secretary Roseboro will address this issue, the ‘‘make-available’’ decision given to the Treasury Department for the third year of the

program. The Senate bill had ‘‘make-available’’ for the life of the

program, all 3 years, when we first moved the legislation. In the

course of the legislative process, including interaction with the

House and with the Administration, it was provided that ‘‘makeavailable’’ was in the statute for 2 years, but the Treasury had the

authority to ‘‘make-available’’ the third year.

That decision has to be made by September 1. From all we have

heard, that is a very late date because it affects planning and

availability and there is considerable concern, apparently, in the

private sector with respect to that date.

I am concerned that the Treasury Department waited until April

29 to publish a request for comments on the ‘‘make-available’’ question. In a sense, we believe the Treasury Department is behind the

curve here on that very important issue. I know you have received

communications from our colleagues in the House about this matter, and it is the immediate issue facing us. And I think we need

5

a prompt decision and recommendation from Treasury. You have

the authority to proceed into the third year. It was given to you by

the statute.

I also appreciate, Mr. Chairman, the second panel that you have

arranged. It is a wide-ranging panel in terms of its points of view,

and I think that will be very much to the benefit of the Committee.

Finally, I would be remiss, Mr. Chairman, if I did not note the

leadership that Senator Dodd exercised on this issue when it was

being considered in the Committee, on the Floor, and in Conference. And I believe it is fair to say that, without his efforts, the

Terrorism Risk Insurance Act of 2002 would not have become law,

and I want to register my deep appreciation to him for his very effective work on this issue.

Thank you very much.

Chairman SHELBY. Senator Bunning.

STATEMENT OF SENATOR JIM BUNNING

Senator BUNNING. Thank you, Mr. Chairman, for holding this

very important oversight hearing today. I supported the Terrorism

Risk Insurance Act when this Committee worked on it in the aftermath of September 11. It took us a long time to get the bill signed

into law, too long if you ask me. But dogged determination by a

majority of the Members of this Committee got the bill passed. I

think our economy has been aided by this passage.

I know some of my colleagues had real reservations about the

bill. And I certainly understand why. Luckily, we have not been hit

by another major domestic attack to see if this program actually

works the way it was intended to after an attack. I think it has

worked well absent an attack. Stability has been brought to the industry, and construction projects are going forward. Hopefully, we

will never have to see if this program works after a major domestic

attack.

But I do believe it is very proper to reexamine the Terrorism

Risk Insurance Act, especially with the ‘‘make-available’’ provisions, as Senator Sarbanes has talked about, set to expire later this

year and the bill expiring next year. It is time to see when and

where we can improve this program, and what we can do to get the

reinsurance industry back into the game.

I am very happy to hear from all of our witnesses today. I am

especially interested in, as I am sure all of my colleagues are and

I suspect most of our witnesses, what Treasury has to say about

‘‘make-available’’ provisions that expire at the end of this summer.

I know Treasury’s comment period ends on June 4. I would like to

know if Treasury has an idea or timetable on when they will be

making an announcement on the ‘‘make-available’’ provision. Obviously, it is of great interest to everyone here. For the record, this

Senator supports an extension.

I would also like to hear from all of our witnesses on what they

think of the program going forward. Should it be left to expire? Can

the private market take over? Should the program be extended?

Can it be improved? Should companies pay premiums? Should

more lines, such as group life, be covered? Hopefully our witnesses

will be able to give us insight on these questions.

6

Once again, thank you, Mr. Chairman, for holding this hearing,

and I welcome all of our witnesses before the Committee today.

Chairman SHELBY. Senator Dodd.

STATEMENT OF SENATOR CHRISTOPHER J. DODD

Senator DODD. Thank you very much, Mr. Chairman, and I

would ask consent that the full context of my opening statement

be put in the record.

Chairman SHELBY. Without objection, so ordered.

Senator DODD. Most of the comments that I would make have

been made, and, first of all, let me thank you for doing this, Mr.

Chairman. This is exactly the kind of oversight that should be occurring, and I think you and Senator Sarbanes have done a terrific

job in this Congress in having good sets of hearings on a variety

of issues and exactly the function of a legislative committee like

this, once you pass a piece of legislation like this, then to go back

at this juncture and actually review what happened. As Senator

Bunning and others have pointed out, we were in unchartered waters when we did this. We did something we had never done before,

and the good news is we have not had to test it in any real sense.

It is very important to evaluate how things are proceeding, so I

cannot emphasize enough the importance of having this type of a

hearing.

I appreciate Senator Sarbanes’ very generous comments, but I

thank him as well. He put a lot of time into this issue when we

were drafting it. Senators Schumer, Reed, Corzine, and Bennett did

a lot of work on this as well. And there are a lot of people, some

of whom are gathered here in this room, Mr. Chairman. People like

Nick Calio at the White House who was tremendously helpful. Nick

is in the private sector today, but Nick did a tremendous job working with the Administration and getting us to the point where we

were able to pass the legislation. I cannot emphasize enough how

important that the Coalition to Insure Against Terrorism was in

getting this done, and there are some people in the room here

today who I thank immensely for their efforts.

I am hopeful as well that we can, first of all, get the ‘‘make-available’’ section done. Senator Bunning has it right. We have to do

this. Just remember what we are doing here. I think all of us understood, particularly with large real estate projects, the idea of a

3-year bill was probably unrealistic. We all knew it at the time.

But the political realities were that you could not get a 5-year bill.

No one wanted to be a part of, or very few wanted to be part of,

a 5-year bill, even though most understood that the private sector

realities were that a bill of 3 years’ limitation was probably not

going to be adequate to cover the kind of fact situations as you develop larger projects. As Senator Sarbanes pointed out, the ‘‘makeavailable’’ provision was to extend through the 3 years. It was only

as a result of a compromise we had to strike that we moved it back.

Now, my hope is that that will not delay on that and that will

be accomplished, and then to evaluate whether or not we need to

extend. We have all heard from various people who have come by

to talk about the importance of extending beyond the sunset period

here, and our witnesses can shed some light on that as to whether

or not they think this is a wise thing to be doing.

7

The good news is what we have not heard over the past 18

months, and that is the public outcry from businesses and workers

whose livelihoods are threatened by their inability to purchase coverage. And while we have not been hit with another attack, which

we are all deeply grateful for, at least in this country, certainly

there is a psychological impact that is occurring in terms of how

people respond economically. And the purpose of this legislation

was twofold: One, to cover against a catastrophic event, and two,

to inject confidence into the market, to get people to act and do

things. So it was not necessarily waiting for some event, but to say

to people, look, we want you to continue doing what you are doing,

it is critically important for the economy, and we want you to know

that we are behind this; we are going to try and work with you

through this period of time.

To that extent, based on what I have heard, anyway, this is

working pretty well. Obviously, we are going to hear from witnesses today who may shed some additional light on this. This was,

I think, a very good effort, but it took too long. I think Senator

Bennett made that point. We got bogged down in tort reform on

this bill, which never should have happened. But it did, and people

wanted to use this as some vehicle for a larger set of issues. Unfortunately, we spent a lot more time on this issue than we should

have at the time, but, nonetheless, it is a good bill. It is working

well, and, again, Mr. Chairman, I thank you immensely for giving

us a chance to hear from Mr. Roseboro and other witnesses about

where we stand today.

But let me join Senator Bunning and others who have made the

point: Let us get this ‘‘make-available’’ thing done. Fooling around

with this too much longer is not helping the underlying purpose of

the legislation. I know there are some people at Treasury who

never liked the bill to begin with. But, that is not the point and

they should not be calling the shots on this. And so let’s not, you

know, delay on this. Let us get that clear. Let us send a message

where we are on that and move forward. That would be a tremendous help right now. If we get nothing else out of this but a clear

signal from the Administration that the ‘‘make-available’’ provisions are going to go forward, that would be great news and would

help tremendously.

I am anxious to hear what you have to say, Mr. Roseboro, but

I hope what you have to say includes that.

[Laughter.]

Chairman SHELBY. Senator Dodd, we are glad you are here.

Senator SARBANES. There is the testimony for the witness.

[Laughter.]

Chairman SHELBY. The first panel will be the Brian C. Roseboro.

He is Under Secretary for Domestic Finance, the U.S. Department

of the Treasury. Mr. Secretary, your written testimony will be

made part of the record in its entirety. You proceed as you wish.

We welcome you here today.

8

STATEMENT OF BRIAN C. ROSEBORO

UNDER SECRETARY FOR DOMESTIC FINANCE

U.S. DEPARTMENT OF THE TREASURY

Mr. ROSEBORO. Thank you, Chairman Shelby, Ranking Member

Sarbanes, and Members of the Committee. I will just give a brief

summary of the submitted written testimony and make myself

available for your questions.

Congress enacted TRIA in the fall of 2002 to address market disruptions for commercial property and casualty terrorism risk insurance caused by the terrorist acts of September 11, 2001. TRIA

established a temporary Federal program of shared public and private compensation for insured commercial property and casualty

losses resulting from acts of terrorism covered by the Act.

By most indications, TRIA has been successful in achieving the

fundamental goal of enhancing the availability and affordability of

property and casualty terrorism risk insurance, particularly for economic development purposes. In terms of affordabilty, while information is still somewhat preliminary, accounts that we have seen

indicate that premiums for terrorism risk insurance have decreased

significantly throughout the early stages of TRIA and continue to

do so.

Despite TRIA’s apparent success, there have been widespread reports that the ‘‘take-up’’ rates for TRIA coverage have been low.

Whether this reflects a lack of interest in terrorism risk coverage

at current prices, a lack of awareness of the availability of coverage, an assessment by businesses of low terrorism loss risk, or

a combination of the above will require careful study and analysis

of information reflecting as comprehensive a view of markets as

possible.

Treasury has the chief responsibility for implementing TRIA.

Perhaps the most daunting, immediate administrative task was to

prioritize and undertake the actions needed to make the program

operational right away. One of the key factors in this regard was

that TRIA became effective immediately on November 26, 2002,

when President Bush signed the Act into law.

Treasury’s first action was to issue promptly a series of three interim guidance notices. These interim guidance notices provided

the basis for insurance companies to proceed with offering coverage

by addressing issues such as compliance with TRIA’s required disclosure and ‘‘make-available’’ requirements; determining which insurers were required to participate in the program and how their

deductibles would be calculated; and the scope of coverage under

the program.

Even while the interim guidance process went forward, we began

the next step in the implementation process to move forward with

formal rulemakings that would incorporate and supersede our

interim guidance. Subsequent rulemakings have addressed issues

associated with State residual market mechanisms, claims processing, and litigation management. Overall, Treasury has published two interim final rules and three proposed rules, and three

of these rulemakings have been finalized.

In addition to the regulatory actions outlined above, Treasury

has also created and staffed a Terrorism Risk Insurance Program

office, or TRIP, to administer the Act. Among its accomplishments,

9

the TRIP office has developed systems to handle claims processing,

payments, and auditing of claims should an event ever occur.

It is important to stress that while we have been moving progressively through the rulemaking process, the program from the beginning has been and continues to be fully operational. From the

earliest days of the program, we have had procedures and resources at the ready to respond to any covered insurable event that

might arise.

Treasury still has some important tasks to complete. First, the

Secretary of the Treasury is required to determine by September

1 whether to extend TRIA’s ‘‘make-available’’ provisions into 2005,

the third year of the program. Treasury is now developing a base

of information from which the Secretary can make this required determination. As part of this process, on April 29, 2004, Treasury

submitted to the Federal Register a request for comments on

whether to extend the ‘‘make-available’’ requirement. Comments

will be accepted until June 4, 2004. We encourage any who have

views on these questions to respond to this request for comments,

with as much detail as they can provide.

Second, Treasury is required to report to Congress by June 30,

2005, on specific issues associated with the Act and its purposes,

including the effectiveness of the program and the likely capacity

of the property and casualty insurance industry to offer insurance

for terrorism risk after termination of the program.

Together with this analysis, Treasury is also required under

TRIA to compile information on premium rates for property and

casualty terrorism risk insurance. To assist in the evaluation of the

Act’s effectiveness, to meet TRIA’s premium information collection

requirement, and to ensure we do so with a comprehensive view of

the markets as much as possible, Treasury has contracted with an

outside research firm to conduct a comprehensive survey with a nationally representative sample of policyholders and insurers.

Each company chosen for the survey is to be contacted at least

twice and possibly three times to capture effects of changes in

TRIA’s insurer deductibles in successive program years. Surveys

for the first wave were mailed out in late 2003 and early 2004 to

over 30,000 policyholders and almost 500 insurers. This phased

structure will allow us to move beyond snapshots and anecdotal

evidence to obtain a broader and more dynamic view of the conditions in the marketplace.

The completed survey results, as well as consultations with a

wide range of interested parties, will form the basis for Treasury

completing its report to Congress on the effectiveness of TRIA and

the capacity of the property and casualty insurance industry to

offer insurance for terrorism risk after termination of the program

by the June 30, 2005, deadline set by Congress.

While we hope that we will never be called upon to trigger coverage under TRIA, this program stands ready today, as it has from

its earlier days, to meet its responsibilities. The basic goal of TRIA

was to develop a temporary backstop for property and casualty terrorism risk insurance so that private markets would have a chance

to adjust. We encourage insurance companies, State insurance regulators, other financial service providers, and other interested parties to think creatively in this regard, and to consider what methVerDate 11-MAY-2000 16:59 Dec 08, 2005 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 24851.TXT SBANK4 PsN: SBANK4
10

ods can be employed to allow for broader private sector involvement in the market for managing property and casualty terrorism

risk. Treasury looks forward to completing our review of the effectiveness of TRIA and considering the many complicated issues presented to us in a thoughtful manner with the best information that

can be obtained in the weeks and months ahead.

Thank you, and I will be happy to answer questions.

Chairman SHELBY. Thank you, Mr. Secretary.

Secretary Roseboro, in your written testimony that you alluded

to and that has been made part of the record, you highlight anecdotal reports of low take-up purchase rates for TRIA coverage. Why

do you think there have been low take-up rates?

Mr. ROSEBORO. At this point in the analysis——

Chairman SHELBY. By take-up rates, a lot of people know, but

explain what you mean.

Mr. ROSEBORO. By ‘‘take-up,’’ we mean the percentage of people

who have availed themselves of paying for the terrorism risk insurance coverage provided under TRIP, and some of the private sector

surveys that we have seen put that number between 25 to 30 percent in general. Some of the theories that we are looking at in

terms of explaining this low ‘‘take-up’’ rate again have to do with

risk perception by the businesses as to whether or not they believe

they are in a targeted area, or targets themselves individually, if

not in a targeted geographic location. How much of it has to do

with the cost of the terrorism coverage is an important component

that we will be examining, and that is one of the critical, important

questions that we are asking in the surveys, and in our conversations with stakeholders and the industry as to what is driving that

low participation rate.

Chairman SHELBY. Would you discuss in a little more detail this

morning the process that the DOT will use to make the ‘‘makeavailable’’ determination, the steps you will go through.

Mr. ROSEBORO. The ‘‘make-available’’ determination, as a number of other Senators mentioned, is very important. As we have

been discussing with people in the industry over the last several

months, over the last year, the importance of coming to a decision

on ‘‘make-available’’ sooner rather than later is understood. As I indicated, we have gone out for public comment, and I would characterize that as not an initial step, but a latter step in terms of looking to come to a determination. It is our intention once that comment period closes June 4, to come to a conclusion as soon as possible.

Chairman SHELBY. Are you confident that you will have at the

Treasury the requisite information to make the judgment that you

need to make here?

Mr. ROSEBORO. For this initial step, yes, sir.

Chairman SHELBY. Secretary Roseboro, when TRIA was passed,

it was supposed to be a stopgap measure that has been talked

about here, that would allow the insurance industry some time to

come to an understanding of how to price the risk of terrorism. The

written statements of many of the witnesses indicate that the insurance industry is not yet willing or capable to step back into the

field. In order to have a proper discussion about the future of the

TRIA Program, I believe we need to have an understanding as to

11

when if at all we can expect the insurance industry to provide terrorism coverage without Federal assistance. In order to address the

question, I believe we need to examine the basics of the business

of insurance.

Secretary Roseboro, what are the principal factors considered by

insurance firms, in your understanding, when they make the decision to insure a particular type of risk?

Mr. ROSEBORO. This is a particularly daunting challenge still for

the industry, and again, something that we will be focusing on significantly in our survey.

Chairman SHELBY. But this goes to the heart of what we——

Mr. ROSEBORO. Absolutely. To form some type of actuarial basis

to calculate the risk, and appropriate pricing for that risk for the

type of outlier events we are looking at is still a major challenge,

and in our conversations that answer is not there as of yet. Again,

we will continue to look.

In addition to the pricing issue, part of the review process is

looking how the market has evolved and finding if there are other

mechanisms to share risk. One of the areas, as an aside to that,

we are looking at are the developments—and again, this is on the

margin and not going to be an immediate solution—in the catastrophe bond market, where the securitization of risks of hurricanes

and earthquakes is beginning to evolve. And again, that process is

still just on the margin, and still very new.

We were recently made aware that, I believe it was last year, a

castastophe bond of that type and that family was utilized to hedge

the risk of loss due to terrorism connected with the World Cup soccer matches in Germany in 2006, and that bond received an investment grade. Again, these securitizations are exceptions and on the

margin.

Chairman SHELBY. Or perhaps the Olympic Games in Athens?

Mr. ROSEBORO. Yes, although we have not heard of any catastrophe bond insurance taken out for the Olympics, but obviously

that is of very much concern in terms of the dynamic of terrorism

risk.

Those are definitely some of the challenges the industry faces.

There is no model that can predict a terrorist event, but those are

the types of things we will be looking at and discussing with industry participants as to the likely evolution timeline of risk sharing,

risk dispersion in the industry through financial——

Chairman SHELBY. Are you saying that insurance firms, right

now as we sit here, cannot conduct such analysis? In other words,

they do not have the right model yet, and if so, will they be able

to at the end of the program? Will they ever be able to do this? I

mean that terrorism is a new concept, a new phenomenon that insurance people have not had to deal with in the past.

Mr. ROSEBORO. I would say right now I would doubt seriously if

they are in a good position to have confidence in a particular

model. A lot of good work that is going into this, but as to how long

this process will take, that will be the focus of our surveys and discussions with the market as to what is a realistic expectation of

how this can evolve.

Chairman SHELBY. Senator Reed.

Senator REED. Thank you very much, Mr. Chairman.

12

Thank you, Mr. Roseboro.

We all know that the TRIA has a hard expiration date of December 31, 2005, and that has caused us and the industry some planning problems at least. One area I am particularly concerned about

is the worker’s compensation system. As Commissioner Williams of

Delaware notes in her written testimony, ‘‘worker’s compensation

coverage is defined by State laws, and State laws do not typically

allow for exclusions for terrorism coverage.’’ In my own State, the

burden of worker’s compensation is borne by one mutual insurance

company created by the State. So without this Federal backstop or

the ability to exclude coverage for terrorism, the worker’s compensation program is going to be seriously compromised.

What is your view on this issue, and what might be done to try

to allay this situation?

Mr. ROSEBORO. Several months ago, we started asking questions

of people in the industry coming in to see us as to, besides other

issues, whether or not there were any operational considerations

that we had to factor in here in terms of policy renewals and looking forward. It was brought to our attention that the insurance

business calendar does not necessarily sync up well with the calendar year the statute provided. So, we are well aware of that situation and are looking seriously at what problems this potentially

could cause. If there are going to be significant problems, or there

cannot be conditional exceptions worked out with the State regulators in terms of the insurance business cycle, then is there anything we need to do in terms of our timeline in making a decision?

That is something that is at the front of our radar screen and we

are looking to factor it into this process.

Senator REED. This area of worker’s compensation, I ask you to

spend particular attention, because unlike other insurance where

the company itself can verify the terms and you can negotiate, typically as we all know, these are State laws which would require legislative action by States to make changes. My concern is that that

will not take place, and we could find ourselves in a very difficult

situation. I would urge you to pay particular attention to worker’s

compensation.

When this issue came up 2 years ago or so, I was surprised when

the worker’s compensation insurers came to me, because we are

talking about property insurance, but if you stop and think about

it, if there is a catastrophic event in one particular area, one company, those survivors are typically covered by worker’s compensation, so we have to think more seriously about that.

We all understand there is an increased risk of terrorist incidents. In fact, the President has basically said, in response to questioning, that he anticipates something might happen. I do not think

they are looking at this hard date as a planning guide in terms of

their potential threat to the United States, the terrorists. Also, as

you mentioned, the rolling expiration dates of policies, the Treasury

study is not due until June of next year, and so valuable information that might be gleaned by that study, 6 months basically between then and the expiration date.

From the Administration’s point of view, what harm would there

be in a short-term extension of the TRIA?

13

Mr. ROSEBORO. Well, again, at this point we have drawn no conclusion about extension, nonextension, or whether a short-term extension would be useful, whether an extension with modifications

should be considered. But that is what we would be focusing on,

those types of issues, in doing the analysis as to where it would be

most useful, because again, it comes back to what has been the

evolution in the market, keying in on availability and affordability

of insurance. That is why we, when we reach out to the market,

we are not only asking for ‘‘yes’’ or ‘‘no’’ in terms of renewal, nonrenewal, but also if there is to be a renewal, are there modifications that could continue, either that we can do, or that we could

recommend to the Congress to do, that could enable the industry

to continue to move forward if sufficient progress has not been

made.

Senator REED. Just one final question, Mr. Roseboro. Can we

presume that this recommendation to us will not be any earlier

than next summer when the report is finished, or would you anticipate a recommendation to us sooner than that? We have a calendar

which is too difficult.

[Laughter.]

Mr. ROSEBORO. We would hope to, again, factoring in those considerations which may, given their importance and the findings

that we start to see in the next few months as survey information

becomes available. We are not looking at being inflexible about our

calendar. Again, we are working on that timetable now, but as with

the ‘‘make-available’’ situation, if the evidence starts to point for

decisions being needed to be made earlier, rather than later, because of complications to the industry which could undermine the

support that the Act was set to foster, then we will adjust accordingly.

Senator REED. Thank you very much, Mr. Roseboro.

Thank you, Mr. Chairman.

Chairman SHELBY. Senator Bennett.

Senator BENNETT. Thank you, Mr. Chairman.

Let me just be sure I understand the timetable you are talking

about, Mr. Roseboro. You have a comment period on the ‘‘makeavailable’’ which expires June 4?

Mr. ROSEBORO. Yes, sir.

Senator BENNETT. If I understood you correctly, you were viewing the end of that as not the beginning of your decisionmaking

process, but rather toward the end?

Mr. ROSEBORO. That is correct.

Senator BENNETT. I can understand that you do not want to

make a decision before the comment period is up, and June 4 is

coming right up. If you got a letter from some of us on this Committee—we are circulating drafts among us, Senator Dodd and I

and others, urging you to act as quickly as you could after June

4—would you be appreciative of that kind of statement on our

part?

Mr. ROSEBORO. I would be appreciative of any letter from this

Committee as a general rule.

[Laughter.]

Senator BENNETT. Not to steal Senator Dodd’s thunder, but I

think you can anticipate such a letter signed at least by the two

14

of us, and we are going to get as many additional signatures as we

can find.

I am encouraged by the fact that you are not using the comment

period as a delaying tactic as sometimes happens, where a bureaucracy says, ‘‘Well, the comment period will not even be over until

June 4, and we are going to require 90 days to read to read all the

comments.’’ So, I want to underscore the fact that now is the time

to be reading them, and close of business on June 5 would be a nice

time for us to have a——

[Laughter.]

—a response.

Mr. ROSEBORO. A little ambitious, but it certainly will not be

months. It may not be days, but certainly not months.

Senator BENNETT. I understand that.

I think all the other issues have been covered, Mr. Chairman. I

just wanted to make that point.

Chairman SHELBY. Thank you.

Senator Dodd.

Senator DODD. Thanks, Mr. Chairman.

You had mentioned at the outset, the Terrorism Risk Insurance

Program—the staff at Treasury deserves a great deal of credit, by

the way. They have done a lot of work in a short period of time,

Mr. Chairman, and sometimes we forget to recognize the people

who do not appear as witnesses, who do not get to be quoted in the

press about how these things are working, but they have done a

very fine job. Out staffs have worked very closely with them, and

we are very appreciative of the work. So please communicate to

your staff how much we appreciate what they are doing.

There is a draft of a letter moving around here, and that Senators Bennett Corzine, Schumer, and I will be sending to you, and

we are circulating it among our colleagues to see if there is some

additional interest. I think you received a similar letter from the

House. Congressman Blount I think and others have expressed a

similar interest. And again, June 4 is coming up pretty quickly, but

just a couple of questions. One, are you receiving any comments in

opposition to the——

Mr. ROSEBORO. Yes, we have received comments in opposition,

not only to ‘‘make-available,’’ but also, even though the comment

period is about the ‘‘make-available,’’ we are receiving more comments about the renewal of TRIA or non-renewal of TRIA——

Senator DODD. This is about ‘‘make-available.’’

Mr. ROSEBORO. We have seen a few, yes, a few.

Senator DODD. But the overwhelming majority are in favor of the

‘‘make-available?’’

Mr. ROSEBORO. Yes, and again, with the comment period still

open I do not know what the——

Senator DODD. Give me a public policy argument as to why you

would not want to extend the ‘‘make-available’’ period? What are

they saying?

Mr. ROSEBORO. Again, this is a snapshot, but as to those who

would be against it, the reasoning ties to the overall program and

the low ‘‘take-up’’ issue as some evidence that it is not needed. Is

this just a barrier to whatever is needed or is the private sector

market operating efficiently?

15

Senator DODD. But it mostly has to do with the underlying legislation?

Mr. ROSEBORO. Yes. Most of the comments are directed more at

the underlying legislation.

Senator DODD. I gather you understand the significance of trying

to get an early answer on this. You do not have to wait until September 1. The law says by September 1.

Mr. ROSEBORO. Absolutely, sir. Again, as we have been discussing this issue with industry participants over the months, we

have heard and understand the significance of this issue to the industry.

Senator DODD. You are hearing us up here, obviously. From an

industry standpoint it is very, very important.

And the reauthorization issue, Mr. Chairman, I do not know how

we are going to proceed on that, but again, this is a similar question. While it is not until June 2005, as we have all learned, for

planning purposes, from a business standpoint, having some clear

indication of what Congress is going to do one way or the other,

it seems to me, becomes very, very important, and I do not know

what the intentions are of the leadership in terms of these kind of

issues. I do not know if the House is going to move on this or not.

Obviously, they have an easier time of moving legislation because

of the rules of the House, but would you agree, Mr. Roseboro, that

it is important that by the end of this legislative session, that we

have a clear indication of whether or not we should reauthorize

this program beyond June?

Mr. ROSEBORO. In terms of the overall program, we really feel

strongly and believe that to offer you the best advice and counsel

possible, we need to do this thorough analysis. We think the approach that we are taking, reaching out, again, to as many as

30,000 policyholders and 500 insurers, will give us a good basis in

fact to give you a credible picture of the market, of the evolution

that is going on in the market, and what the necessary needs will

be. Until we have that, we will not be serving you well in terms

of advising you on this issue.

Senator DODD. Let me jump quickly, Mr. Chairman, just ask

about rates, and I know there is no definitive evidence at this point

of who is buying terrorism insurance and the affordability of such

insurance. Several studies have been conducted recently. In one

study, Mr. Chairman, conducted Marsh, it states that take-up

rates, that is who is purchasing terrorism insurance, are consistently rising as the prices continue to decline. I wonder if you would

share with us whether or not you believe this analysis is correct,

and whether or not you believe without the total backstop provided

by TRIA, if this trend would continue? Are you familiar with the

Marsh study?

Mr. ROSEBORO. Yes, yes. Again, looking forward, the information

that we collect in our study will help validate, invalidate, contradict, and supplement, some of these private sector snapshots to

date.

From a price perspective, the information we have is that prices

have been coming down. However, this is relative. They are still

higher than they were pre-September 11, not surprisingly.

16

Senator DODD. Is there any doubt in your mind what would be

happening in the absence of TRIA. What would have happened?

Mr. ROSEBORO. I think it would have been detrimental for the

economy in the absence of TRIA. It was definitely necessary to

have this program to provide stability and support for economic development. So in terms of TRIA’s mission, we believe it was a success and fulfilled. As we look forward now, the critical issue, is

whether the market is ready to stand on its own two legs or not,

and that is the critical question we are asking now. But we absolutely believe TRIA was necessary, and did what Congress intended it to do.

Senator DODD. The overwhelming amount of evidence you are receiving to date from industry is that they would like to see this renewed, that it is critical for them to have this program remain in

place for at least another couple of years?

Mr. ROSEBORO. Definitely as to the ‘‘make-available’’ extension.

Again, as to the broader surveys, it is not clear, whether the information we have received to date is truly representative, or rather

it is the case of a vocal minority. We want to be very firm in terms

of understanding the broader industry and its dynamics and effects.

Senator DODD. Thank you.

Mr. Chairman, I would ask unanimous consent that this draft of

a letter from Senator Bennett and I be included in the record.

Chairman SHELBY. Without objection, it will be made part of the

record

Senator DODD. Thank you, Mr. Chairman.

[The letter follows:]

Chairman SHELBY. Senator Allard.

Senator ALLARD. Mr. Roseboro, I am going to paint a scenario,

and I would like to have you comment on it. Right now our economy is doing well. We are in economic growth, and if you look at

all the statistical figures, it seems to me that if we were ever to

look at a time when we were beginning to turn this over to the private sector, you would do it during a time when the economy is

doing well and growing. It seems to me that once a sector of businesses become dependent on some subsidy from the Federal Government, they do not like to change it because it means, in this

case, if they do not get that subsidy, then there is going to be an

increase in premiums which has an adverse impact on demand,

and makes it more difficult for them to reach the bottom line,

something like the Farm Program. We have seen what has happened with the Farm Program subsidies. I think there will always

be a demand from the industry for this subsidy because it is going

to make it more difficult for them to market their product because

the price of it has to go up when you do that.

What do you see us being able to do in the next year or 2 or 3

years to make this turn over more to the private sector with less

involvement from the Federal Government?

Mr. ROSEBORO. In addition to assessing, as you characterize it,

whether the need still exists and can the industry adapt without

this type of support?

Senator ALLARD. Let me just stop you right there. How are we

going to measure needs, just by demand by the industry, or do you

17

have some other way of measuring needs? I mean these things

have to be thought about. Go ahead.

Mr. ROSEBORO. Yes, absolutely. Again, there will be a number of

factors in the broader survey that we will try to get a handle on

as to the need. But, thinking back to the initial program and why

it was necessary and what were the clear impediments, the questions as to whether economic development projects are being impeded because of the inability to attain this type of coverage is one

of the obvious criteria we will look at, as well as how that has

evolved over the last 3 years in going forward.

Are there reasonable substitutes or adjustments that could be

made outside of a renewal of TRIA that will work just as well, if

not better, in terms of moving the industry forward if it still needs

a boost? We would also be looking for those types of adjustments,

whether they have to do with this financial information, or possibly

invovle regulatory changes in terms of reserves. Those are the

types of issues we will further explore in terms of alternatives, not

looking at this as a binary decision, leave the TRIA as it is or not;

but, what else could be done if it is assessed that the market still

needs the support in order not to impede economic development.

Senator ALLARD. Actually, the legislation says that you will make

a decision by September 1, I think, is that correct?

Mr. ROSEBORO. I think it uses the word by September 1.

Senator ALLARD. By September 1. I understand the need to make

a decision early so that companies can respond with their policies

and whatnot as they go through a renewal period here, and I can

understand that need. Then the program is supposed to stop, the

way we have drawn it up, on December 31, 2005. How do you see

us if we were to phase this out over time? How could we do that?

Let us assume the decision is, we get into this year, it is obvious

our economy is continuing to do well. What mechanisms could we

put in the legislation that would phase this program down and

move it so that we were before September 11, where we relied on

the private sector to provide this coverage on its own without a

subsidy from the Federal Government?

Mr. ROSEBORO. That is a very good question, especially in regard

with the September 1 ‘‘make-available’’ and how we are looking at

just that process. We look at the decision that will be made by or

before September 1 as not necessarily by any means determining

what the final report or our evaluation will be by the June 30,

2005——

Senator ALLARD. I am already making the assumption that

things are going to go well and we need to phase it down.

Mr. ROSEBORO. What we are talking about here is, if there is

going to be a change in policy or whatever the policy outcome is

going to be, preparing the market for that outcome, so that there

will be no surprise to the market. Being able to communicate, that

is having a continuing dialogue with market participants between

now and that period will be important in order to minimize surprises as to any change in policy course, and whether to continue

Government action or non-Government action. We will work very

hard with the Congress as well to make sure that there is effective

communication going on in order to manage expectations, operational issues, and policy issues with this regard.

18

Senator ALLARD. I am not sure I got an answer on that.

Mr. ROSEBORO. I was going to say, in terms of any specific prescriptions that Congress could take at this point we are not prepared to offer those.

Senator ALLARD. Will you be prepared to offer those at some

point in time?

Mr. ROSEBORO. Potentially, as we begin to get the survey data

in and get a better picture, a moving picture of where the industry

is headed or not headed. I would expect that we would have communications with this Committee as to what our findings would be.

While we may not necessarily make those findings public as we go

along, that would be something in private we would be more than

happy to share with the Committee to help shape expectations and

prepare for whatever policy initiatives would be appropriate.

Senator ALLARD. The debate that is going to go on here is whether we make this a permanent program or not I think, because I

think the more we extend it, the more it is going to become a program, and like I said in my opening comment, I think the industry

has to be honest with us. If they going to start planning on this

as a permanent program, they had better make that clear, so that

in this debate we can understand.

But I think right now the way the legislation was designed, it

is a temporary program, and I hope that you will be prepared to

come forth at some point in time during this debate when we have

it in this Committee—you are not ready today—but we have to

have some idea of how we could put in place to phase this program,

because right now that is the policy of the Congress, and that is

what is passed, and I think we need to be prepared, as that as an

eventual—I do not see how it cannot be a part of the debate, and

if you are prepared to give us some recommendations, I think

would add substantially to the debate, so I would encourage you to

provide that to the Committee.

Mr. ROSEBORO. I will work on that, Senator.

Senator ALLARD. Thank you.

Chairman SHELBY. Senator Carper.

STATEMENT OF SENATOR THOMAS R. CARPER

Senator CARPER. Thank you, Mr. Chairman.

Let me go back and ask a question if I can, Mr. Secretary, about

why do you think the private market has not responded and filled

in the void over the last couple of years?

Mr. ROSEBORO. From of the evidence we have seen to date—and

again, we do not necessarily believe it is enough data, which is why

we want to continue to do the survey, to get a better handle on that

question—there is, on the surface at least right now, several dynamics that are occuring: From the insurance side, an inability to

model and adequately price coverage; from the policyholder side,

behavior based on whether or not there is an expected value or a

risk perception that there is not a need for coverage. Whether policyholder behavior has to do with a geographic area, as some not

living in a major urban area may feel they have less need of this

coverage than those living in a major urban area; to price sensitivity and the feeling that the coverage still is too expensive; or to

the feeling that there will still be help if a major terrorism event

19

occurs again, impact whether or not the entity has bought the insurance.

So we have heard of these different motivations, or theories

about these different motivations from all sides. And again, that is

why we feel it is important to do a thorough survey analysis of this

process to get a handle on what is driving either the development

or nondevelopment of the private sector coming back and being

able to offer this product, which is in demand by some policyholders.

Senator CARPER. I recall when we debated this issue a couple of

years ago, there were concerns relating to economic development,

job creation, particularly with respect to the construction of major

projects, stadiums, arenas, convention centers, that kind of thing.

Have we taken a look to see what effect the adoption of this legislation has had on encouraging those projects to go forward?

Mr. ROSEBORO. We have, and we will continue to do so. The evidence and information we have so far is that TRIA has been supportive of enhancing the economic development, allowing major

projects go forward at a reasonable cost and reasonable financing.

Again, the question is, is it still needed from here going forward?

That is what we will be intentionally looking at, and taking several

periodic surveys of the market to see if there is progress, if there

is development, if there is a change in pricing structure, if there

is a change in demand.

But up to date, we would say TRIA has been very supportive of

those types of projects.

Senator CARPER. All right. To change gears just a little bit if I

could. I do not have a pure recollection of this, but I seem to recall

some discussion 2 years ago when we were looking at the issue of

whether or not group life insurance should enjoy participation in

this program. My recollection—you may have spoken to this during

your testimony—is that we essentially said that Treasury should

do a study of the effect or impact on group life insurance. Do you

recall what the outcome was of that?

Mr. ROSEBORO. Yes.

Senator CARPER. Just give us a little bit of background first, a

little bit of a primer and then what happened.

Mr. ROSEBORO. As I understand it, group life insurance was not

included in TRIA in terms of coverage, but Treasury was tasked

with the responsibility to a study whether or not it would be appropriate to include group life insurance. And then this is key in terms

of what led to Treasury’s conclusion on this. As the Act was written, the criteria that group life would have had to meet would have

been that both the reinsurance as well as insurance available to

consumers would have been unavailable. As was the case then, as

I believe it is now as well, reinsurance is unavailable. There is a

big problem with that without a doubt.

However, group life insurance was still available, and actually

still is now available at competitive rates, in still a pretty competitive market. Treasury ruled against adding group life into TRIA

principally because, based on the Act, it did not fit the two-prong

criteria of unavailable reinsurance and insurance to consumers,

and insurance is available.

20

However, part of the looking forward study, is to say that not

only is it available now, but will it also continue to be available.

So, as Treasury continues to look at the overall issue, we will continue to look at whether there are any changing dynamics on the

group life side, that even though insurance is available now, there

could be problems down that road, so that will be an aspect we will

continue to look at.

Senator CARPER. Good. I am glad to hear that you are doing that,

and thanks very much.

Chairman SHELBY. Senator Bunning.

Senator BUNNING. Thank you, Mr. Chairman.

Most of the things have been covered, but can you give us an update on the financial institutions, what steps they have been taking

to guard against terrorist threats—the financial institutions that

absolutely need this type of coverage if they are going to lend

money to programs.

Mr. ROSEBORO. That is something, sir, I will have to get back

with you on, in terms of any general pattern. Again, there have

been differences along geographic lines in terms of the financial institutions or other institutions taking up coverage, as opposed to

not taking up coverage, depending on where they are located. But

just in terms of coverage for the terrorist event, disrupting them,

I promise I will have the office get back to you on any more specific

patterns that we have seen. And that, again, is something that the

first round of surveys that has just gone out may show, but and

all of the answers have not come back yet.

Senator BUNNING. I would appreciate that because that has a

great deal to do with whether the private sector obviously gets

back into the business, which they are not presently doing. And,

obviously, if the Federal Government gets out of the business, who

is going to fill the gap. That is all of our concerns up here. The reason we passed this to start with was because we were convinced

that the private sector was frightened about the prospects of covering so much of a project or a risk that they would not do it unless

there was a backstop by the Feds.

Mr. ROSEBORO. Yes. On that basis—I am sorry. I think I misunderstood the question—the financial institutions are there,

again, but they are indicating to us that they need TRIA to stay

there, and that is what we will continue to look at and broaden out,

in order to see how widespread that is, whether or not there are

any alternatives, how they would adjust their pricing, how they

would continue to make the coverage available and whether or not

there would be any geographic or industry significant changes in

the absence of the Government backstop.

Senator BUNNING. In other words, can you give me a personal or

a Treasury opinion if we did not renew or extend this program? Do

you think that the private sector would get back into the business

or not?

Mr. ROSEBORO. Personally, again, from Treasury’s standpoint, we

really need to do the survey. Personally, I think it would be cherrypicking type of situations, where in some cases, yes; some cases, no.

Senator BUNNING. In other words, they would insure in Paducah,

Kentucky, and they would not insure in New York City.

21

Mr. ROSEBORO. Exactly. Or if they insure in New York City, it

would be at rates that ensures policyholders would be tempted to

go without coverage. Again, the biggest problem comes back to pricing. If they can be comfortable with pricing, I think you can see

more people come into the market and competition evolve such that

things would be back to more of a normal basis.

Senator BUNNING. I am looking forward to your survey and the

return of the data from your insurers and your perspective buyers

of that insurance without a backstop or with one because I think

that is very important for this Committee to have.

Thank you.

Mr. ROSEBORO. Absolutely.

Chairman SHELBY. Mr. Secretary, thank you for your appearance

here.

Senator SCHUMER. Mr. Chairman.

Chairman SHELBY. Oh, we have Senator Schumer here with us.

Thank you.

STATEMENT OF SENATOR CHARLES E. SCHUMER

Senator SCHUMER. Thank you, Mr. Chairman, and I appreciate

it, and thank you, Mr. Secretary. I apologize for being late.

As you probably know, I was one of the people who pushed hardest for this insurance. Obviously, coming from New York City, it

is crucial to us. Let me just make it clear. This is not an ‘‘if’’ situation for New York City and many other large cities. Without terrorism insurance, our economy will suffer, it will call into doubt

whether new construction, whether rebuilding, whether the return

of downtown New York will happen.

And so what concerns me here is Treasury’s attitude, which I

guess I call, somewhat charitably, lackadaisical on this issue. Here

is what I am worried about. Obviously, the renewal for the next

year to ‘‘make-available,’’ you said earlier you would move on in the

next 3, 4 weeks, after the comment period ends.

Mr. ROSEBORO. As soon as possible, yes, sir, after the comment

period ends.

Senator SCHUMER. That is crucial. But I am really concerned

that the time table for renewing the bill, as I understand it, the

report will not be issued, and we will not even be able to get started on this until next summer, and insurance contracts are not written to, you know, if you say it is okay to have terrorism insurance

on July 15, that does not mean, okay, by July 30, everyone signs

up and everyone lives happily ever after. There are often 2-year

contracts or longer. There is uncertainty. Builders will not plan to

build.

I am extremely concerned about the time table. Why can we not

speed this up? Do you see any dangers of waiting until next summer to make a decision based on this information as to whether we

should renew terrorism insurance?

Mr. ROSEBORO. Treasury takes this critically—it is very, very important, sir.

Senator SCHUMER. Well, we have not—in all due respect, and I

will let you finish—we have not heard from Treasury. People go

into Treasury and do not get any sense of alarm or any sense of

real concern. We hear nothing. You have not taken a position on

22

the ‘‘make-available.’’ You have not taken a position on whether we

need to continue terrorism insurance. This took back-breaking

work, and it happened at the last minute, and, frankly, the reason,

I guess I am a little dubious, is that Treasury had to be pushed,

and pushed, and pushed by some of us on both sides of the aisle,

but by their friends in private industry to get this done at the last

minute last time.

I would like to hear your concern, and particularly I would like

to hear whether you think it is essential or you think we could do

fine without it, but more importantly I would like you to address

the time table—why do we stretch out the time table? And even if

we should renew it next fall—the fall of 2005—we will do untold

damage to the economy in large parts of the country.

Mr. ROSEBORO. From the date the bill was signed, Treasury has

stood ready to execute its responsibilities, and the policy staff, especially the career staff, has worked very hard to make sure there

would never be a problem implementing, if needed. Fortunately, we

have not needed it yet.

As we have worked, given the Act’s time tables given to us, we

have made adjustments where proven necessary, to move things

along. As discussed with the ‘‘make-available’’ provision, the Act indicates the Secretary decide by September 1. As we have been talking to people in the market——

Senator SCHUMER. You mean for the ‘‘make-available.’’

Mr. ROSEBORO. Yes, sir, ‘‘make-available.’’ We have been having

discussions with people in the industry, the market, hearing from

people on the Hill for months, if not over the last year, about the

importance of this. We have been having discussions with people

in the industry about the operational timing issues, which you

mentioned, and we are well aware that the Act, as written, does

not line up perfectly with the operational realities of the business

cycle when decisions have to be made. So we have continued to

work with State insurance regulators on possible scenarios. We

have worked hard to gather the information necessary to provide

the Committee and the Congress with the information it will need

to make a judgment on going forward.

Senator SCHUMER. Sir, I am asking you not whether you are providing information we need or talking to State insurance regulators, give me a reason why Treasury would not say forthwith that

we should renew this bill, not just the ‘‘make-available,’’ we should

renew it, and we should renew it now, given that if we wait until

the last minute—do you agree that if we wait until the last minute,

we will disrupt the markets?

Mr. ROSEBORO. That is what we are trying to determine, exactly

where the markets are now and evolving to.

Senator SCHUMER. Wait. You tell me one person in the industry

who builds, who gives insurance, who tells you that waiting until

next summer to begin renewing the bill will not disrupt the market. Can you name me a person?

Mr. ROSEBORO. No one has told me that it will at this point.

What the industry has engaged us on is the importance of the

‘‘make-available’’ decision, and that is where we have been

focusing——

23

Senator SCHUMER. Then, you and I are in different worlds here.

No one in the industry has said to you that it would be a good idea

to renew it this year, not next year—no one?

Mr. ROSEBORO. The focus of industry contacts I have had, personally, has been directly for the ‘‘make-available’’ provision.

Senator SCHUMER. What is your opinion on trying to get this renewed this year? Do you think we can afford to wait until the report is issued on June 30, 2005, to begin to decide this?

Mr. ROSEBORO. At this point, given the information I have, I

have no predisposition of whether or not it is necessary or not necessary to renew at this point. I see no evidence, at this point, that

it is detrimental to the industry not to renew TRIA this year, sir.

Senator SCHUMER. Can I send you some letters that say just the

opposite of what you are saying?

Mr. ROSEBORO. Please.

Senator SCHUMER. And I would suggest you reach out to both the

insurance industry and the real estate industry. Are you willing to

ask them the question whether it would not be advisable to renew

it this year?

Mr. ROSEBORO. Absolutely, sir.

Senator SCHUMER. My guess is you will hear an overwhelming

loud and unqualified ‘‘yes.’’ If you heard that ‘‘yes,’’ just assume it,

would the Administration be willing to push for renewal this year?

Mr. ROSEBORO. With that ‘‘yes,’’ we, at Treasury, as again we

have reached out for, we want to understand why. What are the

dynamics calling for that?

Senator BENNETT. If I may, Senator, we have the witnesses that

will make your point on the next panel——

Senator SCHUMER. Thank you.

Senator BENNETT. —if you will let us get to them.

Senator SCHUMER. But the witnesses on the next panel have

about as much power over this as you or more.

[Laughter.]

This is the man with the juice.

[Laughter.]

Senator BENNETT. The Chairman has returned.

Chairman SHELBY. I do not believe we have any other questions

of you today, but we will leave the record open for any written

questions because there is a lot of concern and a lot of interest, you

can tell, by the audience that you brought with you today.

Mr. ROSEBORO. I would be happy to respond to any of your follow-up questions.

Chairman SHELBY. We appreciate your appearance here today,

and we look forward to working with you.

Mr. ROSEBORO. Thank you very much, sir.

Chairman SHELBY. We are going to call up the second panel now.

Ms. Donna Lee Williams, Commissioner, Delaware Department

of Insurance; Mr. Richard Hillman, Director of Financial Markets

and Community Investment, the U.S. General Accounting Office;

Mr. J. Robert Hunter, Director of Insurance, Consumer Federation

of America; Mr. Jack Degnan, Vice Chairman, the Chubb Corporation, testifying on behalf of the American Insurance Association

and a coalition of property-casualty insurance trade associations;

Mr. Christopher Nassetta, President and CEO of Host Marriott

24

Corporation, who will be testifying on behalf of the Coalition to Insure Against Terrorism; and Mr. Jacques Dubois, Chairman and

CEO of the Swiss Re America Holding Corporation.

I welcome all of you to the Committee today. You have had the

benefit of the Treasury’s testimony here, through Mr. Brian

Roseboro, and we will go from there.

Please take your seat.

Senator SCHUMER. Mr. Chairman, could I ask unanimous consent

that my opening statement be placed in the record.

Chairman SHELBY. Absolutely. Without objection, Senator Schumer’s opening statement will be made part of the record.

Senator Carper, do you have something special——

Senator CARPER. Yes, we have a——

Chairman SHELBY. You have a special panelist.

Senator CARPER. Thank you. We have a special guest here from

Delaware. I am pleased to welcome Donna Lee Williams, our Insurance Commissioner, who is nearing the end of her third term, and

it looks like maybe her final term as our Insurance Commissioner.

In some States, that is an appointed position. In our State, it is an

elected position. She has been elected Statewide three times and

has done I think a very fine job, and so I want to welcome here

today.

We are delighted that you are here. And she is here on behalf

of The National Association of Insurance Commissioners and serves

in a leadership role which enables her to come here and speak with

special—I do not know if she brings the ‘‘juice,’’ Senator Schumer,

but brings a lot of thought and intellect to this job.

Welcome, Donna Lee.

Ms. WILLIAMS. Thank you very much.

Chairman SHELBY. I welcome all of the panelists again. Your

written testimony will be made part of the record in its entirety.

Ms. Williams, we will start with you. I hope you will sum up

your testimony, briefly.

STATEMENT OF DONNA LEE WILLIAMS

COMMISSIONER, DELAWARE DEPARTMENT OF INSURANCE

ON BEHALF OF THE

NATIONAL ASSOCIATION OF INSURANCE COMMISSIONERS

Ms. WILLIAMS. I will do the best that I can, sir.

Chairman SHELBY. Sure.

Ms. WILLIAMS. Lawyers and elected officials like myself tend to

be long-winded.

Today, I want to make three basic points. And again I thank the

Chairman and the Committee for allowing the Nation’s insurance

commissioners the opportunity to testify regarding this issue. I

want to make three basic points today.

First, there is still a need for the Federal Government to provide

appropriate financial back-up to the private insurance market in

order to assure that segments of our Nation’s economy do not falter

due to a lack of insurance coverage for terrorism. The insurance

marketplace is not yet ready to take on the risk of providing coverage for acts of terrorism on its own.

Second, the Treasury Department should extend the ‘‘make-available’’ requirements in TRIA so that businesses across America will

25

know that they can purchase the terrorism insurance coverage they

need to sustain a healthy economy.

Third, Congress should act this year to extend coverage under

the Terrorism Risk Insurance Program or enact a comparable Federal backstop for acts of terrorism, at least through 2006, because

the commercial insurance markets are not yet prepared to underwrite sufficient terrorism coverage without a Federal backstop.

Following the enactment of TRIA, the NAIC appointed a Terrorism Insurance Implementation Working Group of State Regulators that has worked very closely with the Treasury Department

to successfully implement the Act’s provisions, as well as to monitor the impact it has had on the insurance marketplace. Although

we observe that the take-up rate for terrorism insurance coverage

mandated under TRIA has not been widespread, coverage is available for those industries that want to purchase it. We believe the

presence of the Federal backstop has provided a measure of comfort

to the insurance industry, and has encouraged insurers to offer coverage for acts of terrorism that it might not have made available

in the tragic wake of the tragic events of September 11.

Congress can help us continue the progress made in restoring the

market for terrorism insurance by doing two things. First, encourage the Secretary of the Treasury to make an early determination

that he will impose the ‘‘make-available’’ requirement of TRIA to

all participating insurers. The second is for Congress to act this

year to extend the expiration date contained in TRIA to a future

date that is consistent with the business cycle for terrorism insurance renewals.

Insurance regulators believe extending the ‘‘make-available’’ requirement in TRIA through 2005 will help ensure marketplace stability by continuing the availability of terrorism insurance in all

parts of the United States. If insurers were not required to offer

coverage, areas of low risk of losses from acts of terrorism would

probably experience little disruption. However, those areas of our

Nation and prominent cities with attractive targets for terrorism

activity might face availability and affordability problems. This

would have a negative effect on their local and regional economies,

particularly with real estate development.

Earlier this month, insurance regulators began receiving contingency filings from the Insurance Services Office, the Nation’s largest advisory organization. In the event Congress does not extend

the TRIA program this year, these policy form filings would reinstate terrorism coverage limitations that were in effect prior to

TRIA’s enactment for any policies written for coverage that extends

into 2006. In addition to protecting insurers from additional terrorism liability, these filings demonstrate the insurance industry is

not willing to assume the risk of terrorism losses by themselves at

this time.

The NAIC’s Terrorism Insurance Implementation Working Group

believes TRIA’s ‘‘make-available’’ requirement has contributed to

the overall effectiveness of the program during the program’s first

2 years. American businesses, both large and small, have been offered choices they might not otherwise have had. Through the

‘‘make-available’’ provision, TRIA has given them the opportunity

26

to make an informed choice regarding the purchase of coverage for

acts of terrorism.

One of the elements the Treasury Department is required to consider is the capacity of the insurance industry to accept the risk of

losses from acts of terrorism. The NAIC’s data shows 2003 was a

profitable year for property and casualty insurers. However, policyholder surplus declined each year from 1999 through 2002. The

Treasury Department must consider whether the industry is willing to put its capital at risk. We believe the answer is no.

Insurers in the marketplace at large are finding it very difficult

to accurately price coverage for acts of terrorism. Unknown frequency, coupled with the potential for severe losses, makes coverage for acts of terrorism one that insurers might choose to avoid,

if given the opportunity. Until insurers and their reinsurers become more comfortable that Government efforts are adequate to

protect citizens from terrorist acts or at least become more predictable than they are today, they will be reluctant to accept complete

risk transfers from American businesses. In particular, those businesses viewed by insurers as having greater risk of terrorism losses

will have trouble finding insurance.

Consequently, the NAIC’s Terrorism Insurance Implementation

Working Group urges the Treasury to extend the ‘‘make-available’’

requirement. The Working Group met in conference call yesterday.

We are also preparing a draft in response to the request for comments issued by Treasury.

In addition, the NAIC urges Congressional action this year on a

Federal solution to ensure continued marketplace stability when

TRIA expires at the end of 2005. Because some terrorism risks are

largely uninsurable without a financial backstop, State regulators

are very concerned that significant market disruptions will develop

before TRIA’s expiration. This is due, in part, to the deadlines contained in TRIA which do not match the business cycle for insurance

renewals.

As early as September of this year, insurers and their policyholders will be required to make decisions regarding coverage that

goes well into 2006. At present, annual policy renewals with effective dates of January 2, 2005, or later must contemplate that there

will be no Federal backstop for any losses occurring in 2006. For

this reason, State regulators anticipate widespread insistence by

insurers that conditional policy exclusions for terrorism coverage be

included in renewal policies starting this year. We encountered this

scenario in the aftermath of September 11, which prompted the

creation of TRIA.

To address this situation, Congress could simply change one line

of TRIA. Extending the program termination date until December

31, 2007, would enable Congress to receive the report from Treasury on June 30, 2005 and allow roughly 15 months to digest and

debate any future Federal role in backstopping acts of terrorism.

Other alternatives would be to extend the coverage period in the

program without extending the actual effective date of the law or

to develop a different type of Federal backstop for acts of terrorism

that provides some form of funding for the risk of losses resulting

from the acts of terrorism.

27

In summary, we strongly urge Congressional action to extend

TRIA this year. We strongly urge Treasury to extend the ‘‘makeavailable.’’ The State regulators stand ready to assist Congress in

developing appropriate methods for continuing the Federal Terrorism Reinsurance Backstop. I thank you for recognizing the

expertise in the State regulatory system and allowing us to participate in this debate.

Chairman SHELBY. Mr. Hillman.

STATEMENT OF RICHARD J. HILLMAN

DIRECTOR OF FINANCIAL MARKETS AND

COMMUNITY INVESTMENT

U.S. GENERAL ACCOUNTING OFFICE

Mr. HILLMAN. Thank you, Mr. Chairman and Members of the

Committee. I am pleased to be here today to discuss our report on

the implementation of the Terrorism Risk Insurance Act of 2002—

or TRIA—and the Act’s impact on the insurance market.

Our report on the implementation of TRIA has two objectives.

First, we described the progress made by Treasury and insurance

industry participants in implementing TRIA.

Second, we discussed the changes in the market for terrorism insurance coverage under TRIA.

In short, we found that Treasury has made significant progress

in implementing the provisions of TRIA, but has important work

to complete in order to comply with all of its responsibilities under

the Act.

We also found that TRIA has enhanced the availability of terrorism insurance for commercial policyholders. However, most are

not buying terrorism coverage, and those that have remained exposed to significant perils.

Finally, we have learned that industry market participants have

made no progress to date toward the development of reliable methods for pricing terrorism risk and little movement toward any

mechanism that would enable insurers to provide terrorism insurance to businesses without Government involvement.

More broadly, it appears that Congress’s first objective in creating TRIA to ensure that business activity did not materially suffer from a lack of available terrorism insurance largely has been

achieved. Since TRIA was enacted in November 2002, terrorism insurance generally has been available to businesses. In particular,

TRIA has benefitted commercial policyholders and major metropolitan areas perceived to be at greater risk to a terrorist attack.

Prior to TRIA, we reported concerns that some development

projects had already been delayed or cancelled because of the unavailability of insurance and continued fears that other projects

would also be adversely affected. We also conveyed widespread concern that general economic growth and development could be

slowed by a lack of available terrorism insurance. Since TRIA’s enactment, terrorism insurance has generally been widely available,

even for development projects in perceived high-risk areas, largely

because of the requirement in TRIA that ‘‘make-available’’ coverage

for terrorism be made on terms not differing from other coverage.

However, despite increased availability of coverage, limited

industry data suggest that only 10 to 30 percent of commercial polVerDate 11-MAY-2000 16:59 Dec 08, 2005 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 24851.TXT SBANK4 PsN: SBANK4
28

icyholders are purchasing terrorism insurance. According to industry experts, purchases have been higher in areas considered to be

at high risk of another terrorist attack. However, many policyholders with businesses or properties not located in perceived highrisk locations are not buying coverage, perhaps because they view

any price for terrorism insurance as high relative to their perceived

risk exposure. Some industry experts are concerned that those

most at risk from terrorism are generally the ones buying coverage.

In combination with low purchase rates, should a terrorist event

occur, these conditions could impede business recovery efforts for

those businesses without terrorism coverage or cause financial

problems for insurers.

Moreover, we found that even policyholders who have purchased

terrorism insurance may remain uninsured for significant risk arising from certified terrorist events, including losses involving nuclear, biological, or chemical agents or radioactive contamination.

Since September 11, 2001, the insurance industry has moved to

tighten longstanding exclusions from coverage for losses resulting

from such events. As a result of these exclusions, even those policyholders who chose to buy terrorism insurance may be exposed to

potentially significant losses.

Nearly a year and a half after TRIA’s enactment, we found that

there has been little progress toward Congress’s second objective—

to give private industry a transitional period during which it could

begin pricing terrorism insurance and develop ways to cover losses

after TRIA expires. According to industry sources, TRIA’s ceiling on

potential losses has enabled reinsurers to return cautiously to the

market; that is, some reinsurers are offering coverage for terrorism

risk within the limits of the insurers’ deductibles and the 10-percent share that insurers would pay under TRIA.

However, insurance experts said that without TRIA’s caps on potential losses, both insurers and reinsurers likely still would be unwilling to sell terrorism coverage because they have not found a

reliable way to price their exposure to terrorist losses. Without

being able to set appropriate prices, such losses could lead to insurer insolvency. Not only has no private-sector mechanism

emerged for supplying terrorism insurance after TRIA expires, but

to date there has also been little discussion of possible alternatives

for ensuring the availability and affordability of terrorism coverage

after TRIA expires.

Our report concluded Congress may benefit from an informed assessment of possible alternatives to TRIA, including both wholly

private alternatives and alternatives that could involve some Government participation or action. Such an assessment could be part

of Treasury’s TRIA-mandated study to assess the likely capacity of

the property and casualty insurance industry to offer insurance for

terrorism risk after the termination of the program.

As a result, as part of the response to the TRIA-mandated study,

our report recommends to the Secretary of the Treasury that it consult with the insurance industry and other interested parties and

identify for Congress an array of alternatives that may exist for expanding the availability and affordability of terrorism insurance

after TRIA expires. These alternatives could assist Congress during

29

its deliberations on how best to ensure the availability and affordability of terrorism insurance after December 2005.

Mr. Chairman, this concludes my prepared statement. I would be

pleased to respond to questions at the appropriate time.

Chairman SHELBY. Mr. Hunter.

STATEMENT OF J. ROBERT HUNTER

DIRECTOR OF INSURANCE

CONSUMER FEDERATION OF AMERICA

Mr. HUNTER. Mr. Chairman, thank you for bringing me back to

this room where, as Federal Insurance Administrator, Senator

Proxmire made me feel a little bit, I am sure, like Secretary

Roseboro must have felt a few minutes ago. I served as Federal Insurance Administrator under Presidents Ford and Carter, and as

Texas Insurance Commissioner—and I am an actuary, so if you

have any actuarial questions, give me a call.

September 11 was an awful day, as we know. The property casualty insurance paid losses from that day are now estimated to be

between $30 and $35 billion before tax. After Federal tax considerations, that is about $20 billion that the industry has or will pay

out from the September 11 event. To put that into perspective, the

after-tax profits of the American International Group last year was

$9.3 billion. The retained earnings of the property casualty insurance industry in 2000 was $65 billion. The insurers do not need

free reinsurance anymore.

I bring that conclusion in part from my experience with the riot

reinsurance program that I administered. The program kept insurance in the inner cities in the early 1970’s when there was a great

fear of writing insurance in the inner cities very similar to this situation. We charged at the Federal Insurance Administration actuarially sound premiums for reinsurance, and when the program

was terminated taxpayers actually realized a profit from writing

reinsurance. The private reinsurance market developed under our

program because the price we charged was actuarially sound. It

was not free. It is amazing how little competition you will get from

the private sector when you charge zero for something.

CFA has recently published a major study of the workings of

TRIA, which I have attached to my written testimony, which I assume is in the record as well. Almost all insurers rely to some degree on the terrorism models that are out there including the Insurance Services Office model. ISO is a ratemaking organization.

They show that four cities have high risk of terrorist attack: New

York, San Francisco, Washington, and Chicago. And that five cities

have moderate risk Boston, Seattle, Los Angeles, Houston, and

Philadelphia, and the rest of the country is low risk according to

the models.

Terrorism insurance rates are very low in the low risk areas. For

example, a $10 million building with $5 million of contents would

pay only $300 to insure terrorism risk in 2005.

Chairman SHELBY. Where?

Mr. HUNTER. In the rest of the country, excluding the nine cities.

In the five moderate-risk cities, the cost is $6,200 for that building,

and in the four high-risk cities, the cost would be $50,000 in that

$10 million building with $5 million of contents. In the high-risk

30

cities, costs would rise to an estimated $71,500 if TRIA expired. In

other words, the rate would go up about 50 percent. In the lowerrisk areas the change would be very modest, and in the moderate

risk areas also, only $326 more.

The private sector will cover all ISO-projected terrorism losses in

all but the nine cities according to the model, except for the very

unusual, nuclear and so on. Outside the nine cities there is not

much risk of losses according to the ISO model. One hundred percent will be covered in the low-risk areas by the private sector in

2005. Commercial insurance buyers in most of the Nation are reluctant to buy taxpayer-backed terrorism insurance. That is no surprise. Most reluctant are the rural areas. They do not expect to use

it.

We have done a lot of studies over time on why the flood insurance policies do not sell, and why earthquake insurance does not

sell. I think lack of terrorism coverage is the same exact thing. People do not think it will happen to them is the primary reason. The

second reason is, if it does happen, Congress is going to come along

anyway and bail us out regardless of whether we buy it, so why

buy it? That is a perception that research by Wharton and others

shows.

Industry experts have projected that terrorism insurance losses

will be modest. ISO says that the average annual losses from terrorism for all property casual insurance will be $5.75 billion a year.

That is the average. To put that into perspective, the property casualty insurance premiums in 2003 were $450 billion. Those losses

would be 1.3 percent of premiums. Insurers are in an excellent financial position to cover terrorism losses. They have just gone

through what is called a hard market. The profits are very high

and expected to remain high for several years. Now is the time, as

I think was earlier said, to consider eliminating free reinsurance.

However, we do not think it is necessary to extend, but if you do

there are four very quick principles that we think you should look

at. First, focus on the nine cities where the risks are high. Second,

increase the deductibles that insurers pay. We suggest a deductible

of at least $50 billion after tax. The current deductibles are pretax.

Third, increase the share of losses that insurers pay above the

deductibles. And move those higher and higher year-by-year, if you

have to go forward with the program, to phase out and make sure

the private sector can build capacity. And fourth, ensure that taxpayers are reimbursed for backing up terrorism losses. Also, the

Treasury Department should require that insurers pay premiums

for the coverage the taxpayers are providing that are actuarially

sound or maybe even a little higher than actuarially sound so that

the private sector can compete.

I will be happy to answer questions when the time is right.

Chairman SHELBY. Mr. Degnan.

31

STATEMENT OF JOHN J. DEGNAN

VICE CHAIRMAN AND CHIEF

ADMINISTRATIVE OFFICER, THE CHUBB CORPORATION

ON BEHALF OF

THE AMERICAN INSURANCE ASSOCIATION,

COUNCIL OF INSURANCE AGENTS & BROKERS,

THE FINANCIAL SERVICES ROUNDTABLE,

INDEPENDENT INSURANCE AGENTS & BROKERS OF AMERICA,

NATIONAL ASSOCIATION OF MUTUAL INSURANCE COMPANIES,

NATIONAL ASSOCIATION OF PROFESSIONAL INSURANCE AGENTS,

PROPERTY CASUALTY INSURERS ASSOCIATION OF AMERICA,

REINSURANCE ASSOCIATION OF AMERICA,

SURETY ASSOCIATION OF AMERICA, AND

UWC—STRATEGIC SERVICES ON UNEMPLOYMENT & WORKERS’

COMPENSATION

Mr. DEGNAN. Thank you, Mr. Chairman. Today, I appear representing the American Insurance Association and a broad coalition

of virtually every other property and casualty trade association. We

have made sadly obvious to the Chairman and others on the panel

that we rarely speak in our industry with one voice, but today I

have the opportunity to speak with one voice for the entire P&C

industry. With that one voice we urge the Congress as strongly as

we can to extent TRIA now for an additional 2-year period after

December 30, 2005.

I was surprised to hear Under Secretary Roseboro indicate that

he had not heard that from the industry. I attended in March with

many of the leaders of the P&C industry a meeting with Treasury

Secretary Snow and Under Secretary Roseboro at which we strongly urged them, with as much urgency as we could convey, the need

to do so this year. Doing that would allow sufficient time to assess

the data from Treasury’s mandated June 2005 TRIA study, and in

that context a long-term solution for managing the uninsurable

risk of catastrophic terrorism could be evaluated, and if feasible,

developed and implemented.

Although insurance losses were hardly the most serious implication of the tragic attack of September 11, that attack did result in

the most expensive insured event in U.S. history, with losses estimated to be close to $35 billion. I am proud to note that insurers

responded to the September 11 claim without the benefit of a single

dollar of Federal assistance. This prompt and positive response has

been credited by many with stabilizing financial markets in the immediate aftermath of the attack.

September 11 awakened us all to the reality that we are in a war

against terrorism. Recognizing both the new nature of terrorism

risk and the destabilizing strain that tragic event placed on the private terrorism risk insurance market, Congress enacted TRIA in

November 2002. While not perfect TRIA has ensured, and many of

the witnesses I think share this view, market stability for our customers. Since TRIA’s enactment, affordable terrorism insurance

has been readily available to commercial policyholders, and TRIA

has enabled billions of dollars of business transactions which were

previously stalled to move forward without threatening the solVerDate 11-MAY-2000 16:59 Dec 08, 2005 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6633 24851.TXT SBANK4 PsN: SBANK4
32

vency of the commercial enterprises involved or their insurers. And

it has kept Government administrative costs to a minimum.

But the TRIA cannot address the underlying systemic problems

of insuring terrorism. First, terrorism risk modeling is still in its

infancy. Natural catastrophe modeling does help, but unlike terrorism natural catastrophes are predictive, both of method and of

frequency and of severity. Only terrorists can control those variables in a terrorist risk.

Second, terrorism is an interdependent risk. Nothing could have

been done by the World Trade Center management at the time to

prevent what happened on September 11 or to avoid security failures elsewhere. With terrorism, vulnerability unfortunately is

measured by the weakest link in the chain.

Third, another catastrophe terrorism event could bring financial

ruin to the insurance industry. Under certain event scenarios, estimated insured losses could exceed $250 billion. That level would

easily exceed the industry’s entire commercial capacity. Capacity

that is needed, by the way, to back all commercial risks, not just

catastrophic terrorism.

And finally, information necessary to evaluate terrorism risk to

enable us to underwrite it often falls within the realm of sensitive

intelligence data, and the insurers and policyholders simply do not

have access to the classified data in the hands of the U.S. Government.

If anything is certain about the risk of terrorism is that that risk

will not fade away when TRIA expires at the end of 2005. Neither

war nor terrorism happens by chance. They are both premeditated.

They are planned and executed with specific purpose. Terrorism

today is essentially war carried out by individuals or organizations

rather than sovereign nations. Because of these shared characteristics with war risk, terrorism defies normal underwriting and rating

principles, limiting the ability of the private market to react.

Accordingly, the TRIA backstop continues to be vital. We urge

Congress to act today to extend TRIA for 2 more years. As some

witnesses have said, there is a mismatch between the annual terms

of insurance policies and TRIA’s end date of December 31, 2005.

Annual policies written after January 1, 2005 will have a term that

expires beyond the end of TRIA. As a result, unless the TRIA is

extended in connection with the ‘‘make-available’’ extension by

Treasury which we support, insurers will still have to evaluate

every policy issued in 2005 as if there is no backstop. And because

of State notice requirements, insurers will really have to begin informing policyholders as early as October 2004, even if the ‘‘makeavailable’’ decision is issued, that there is uncertainty with respect

to terrorism coverage for a full annual period and a policy renewing

after January 1, 2005.

Equally important, the backstop should be extended until the

risk of catastrophic terrorism and how best to spread that risk and

manage it are fully understood. As I have noted, and you have,

Treasury’s report to Congress is not due until just 6 months before

the program is scheduled to sunset, and the analysis and development of data and sound public policy on what is an important national economic security issue should not be held hostage by a date.

33

In conclusion, September 11 proved that our national economy

depends on a strong insurance industry. If the insurance industry

were seriously compromised, all areas of the economy would suffer.

TRIA’s public-private partnership is working to stabilize the commercial insurance markets that underpin our free market economy

in the face of a risk that remains essentially uninsurable. The aim,

after all, of a terrorist is not only to hurt the insured, but also to

wage war against the United States by targeting this country and

its institutions. Without TRIA, a catastrophic attack could very

well bring the insurance industry to its knees and significantly destabilize our economic infrastructure, achieving a primary aim of

the terrorists. We simply cannot afford to let TRIA expire and

leave this important measure to chance. A two-year extension is

critical.

Thank you, Mr. Chairman.

Chairman SHELBY. Mr. Nassetta, we have a vote on the floor, so

if you and Mr. Dubois would briefly sum up your testimony we

could move along.

STATEMENT OF CHRISTOPHER NASSETTA

PRESIDENT AND CHIEF EXECUTIVE OFFICER,

HOST MARRIOTT CORPORATION

ON BEHALF OF

THE COALITION TO INSURE AGAINST TERRORISM

Mr. NASSETTA. I would be happy to. Thank you, Mr. Chairman.

I am here today representing the Coalition to Insure Against Terrorism, or CIAT.

I am the CEO of Host Marriott Corporation. We are the largest

owner of hotels in the United States with interest in over 230 properties in 34 States and the District of Columbia. Like many other

CEO’s here today, since September 11 I think it is fair to say I

have spent more time on insurance issues than I have in all of the

years leading up to September 11. This occurred at the same time

when our industry probably suffered the most catastrophic decline

in operations in its recorded history.

My real involvement with terrorism insurance started on September 11 when we lost our Marriott World Trade Center Hotel

and suffered significant damage to our Marriott Financial Center

Hotel. More importantly, we lost 2 employees at the World Trade

Center Hotel and 11 of our guests were unaccounted for. I recognized at that moment what a critical issue this was for our company, our industry, and the broader economy as I witnessed the

devastation of September 11 and realized that this war on terrorism, as we hear from most involved, is going to be a war that

is waged over a very long period of time.

While certainly an important issue for our company, as I mentioned, I am here representing CIAT. CIAT was formed following

September 11 by a broad-based group of industry associations and

companies to address the critical need for terrorism insurance.

CIAT is a diverse membership group which covers private companies as well as public sector buyers of insurance. Sectors we represent include real estate, entertainment, transportation, utilities,

and finance, just to name a few. As such, we are, in our view, the

primary consumer of this very important insurance product.

34

It is fair to say, following September 11, as we have heard today,

terrorism insurance was very scarce, very expensive, and we were

left with inadequate protection of our existing assets. We saw a significant slowdown of development and job losses as a result of that,

and of course, the negative result that this had on our economy.

My experience was that we were only able to obtain terrorism insurance at about 3.5 percent of prior levels. Our costs tripled, and

it excluded biological, chemical, and radiological events. Thanks to

the leadership of Congress and our President, TRIA passed in 2002

and has been a great success. Since then, costs have stabilized and

capacity in the market has increased substantially.

While TRIA has been a great success by many measures, it has

not been an unqualified success in the sense that to date, as you

have heard, no private reinsurance market of substance has really

formed for that portion of the liability that is retained by the individual insurance companies, or for biological, chemical, or radiological events, even though these perils are technically covered by

TRIA. Thus all policies today exclude biological, chemical, and radiological events with the exception of workers’ compensation insurance which is regulated by the States.

Some have argued even here today that we should let market

forces solve the problem and that TRIA may stunt that opportunity. In my opinion, nothing is further from the truth. It is clear

at this point that the insurance industry, and you are hearing from

them here today, is unable to underwrite the risks currently, and

certainly without TRIA we would not have any significant market.

On behalf of CIAT, I would ask you to consider two issues. One,

that we urge the Treasury Secretary to extend the ‘‘make-available’’ date. Without that, I think hard evidence and anecdotal evidence suggest that we will not have the availability of terrorism insurance. Waiting until September is unacceptable in the sense that

delay creates a lot of uncertainty in the market.

Two, we should extend the overall program with a ‘‘make-available’’ provision for 2 years. It is clear, as I have said and I think

you have heard today, that the industry is just not prepared at this

point to underwrite it. The insurance industry may never be able

to underwrite it, but that is something to debate later. The increased uncertainty is ultimately going to create dislocation in the

financial markets. It is going to ultimately increase the cost of capital, I think, and as a result of that, slow the economy and cause

job losses. Keeping in mind that many of the insurance policies are

longer than one year in length, this is not something that we are

going to experience a few years from now. This is something that

is very close. That uncertainty is going to have a real impact in the

short-term.

I think the extension of 2 years really, as people have talked

about today, allows the markets to attempt to underwrite the risk.

In my humble opinion, the markets may not be able to underwrite

it longer term but an extension at least allows a reasonable period

of time to debate the issue on Capitol Hill of whether this is a cost

our society should bear in the sense that it really is something that

starts with an act of war against our way of life. But the extension,

in any event, allows the time to figure out whether this can be

solved with a longer-term solution.

35

We must ultimately protect our financial markets and our overall

economy. TRIA is a critical component of protecting the economy

against terrorism. It just does not seem appropriate, to me or, the

many people I talked to, when we got this passed in the first instance, that is prudent to let TRIA lapse and then pick up the

pieces and clean up a mess after the fact. It just does not seem to

be the way we do things.

Finally, I would say it seems a bit ironic and inconsistent that

through OPIC we provide terrorism insurance for investments

overseas until 2007 but if we do not extend TRIA, we would not

be providing that same type of insurance for acts of terrorism on

our own soil.

Thank you, Mr. Chairman.

Chairman SHELBY. Mr. Dubois, we only have 3 minutes for you.

We have 3 minutes till the vote ends and I am going to have to

go, so they have eaten your time up. So welcome again to the Committee. We have your written testimony in the record and if you

will sum up your two or three basic parts fast.

STATEMENT OF JACQUES E. DUBOIS

CHAIRMAN AND CEO

SWISS RE AMERICA HOLDING CORPORATION

Mr. DUBOIS. Thank you, Mr. Chairman, let me do that quickly.

Swiss Re has a keen interest in this law for two reasons. We believe that U.S. terrorism risk stems in large measure from terrorist

efforts to influence Government policy. As a result, we feel very

strongly that Government must play a partnership role with the insurance industry in coping with these losses. I would further add

that we are not optimistic that this would be temporary or could

be temporary in nature.

Second, I would say that TRIA has worked. TRIA has provided

protection limiting insurer losses in the event of an additional terror attack or attacks. This allows the insurance industry to perform

its traditional roles in bearing risk against losses from hurricane,

windstorm, floods, fire, auto, et cetera.

As a reinsurer, we are not required to provide terrorism reinsurance coverage, and for the most part we do not at this time with

two exceptions. We provide partial protection to clients for the

TRIA retention exposure, and we provide modest catastrophe recovery for our group life clients. Our position is that the insurance and

reinsurance market is not currently prepared to absorb terrorism

risk regardless of any limited improvement in modeling whatsoever. The possible losses are just too high.

Swiss Re is currently sponsoring with nine other organizations a

study by the RAND Corporation aimed at assessing terrorism risk

and loss potentials. What we are learning there is really horrifying.

I would not want to live in the tenth city.

Chairman SHELBY. Would you furnish us a copy of that for the

record, the RAND study?

Mr. DUBOIS. Yes, we will do so, sir.

In addition, Swiss Re also assisted in a study by RMS, a leading

modeling organization, which also analyzed terrorism scenarios.

This study found that insured losses of $55 billion are possible for

workers’ compensation and life insurance lines of business.

36

In a LOMA study, a research and education association for the

life and financial services industries, a study on terrorism events,

including that of a smallpox attack, indicated a possible death

count of 30 million people, approximately 12 times the number of

deaths in the United States annually. Just as with September 11,

the possible costs of these horrific losses have not been factored

into insurance prices and cannot be absorbed by the industry.

In the interest of time let me just comment that we very much

support the group life insurers in seeking inclusion in the TRIA

legislation. We are the largest group life reinsurer and we do not

have a way to model because of the impossibility of forecasting frequency and severity, and we urge the extension of TRIA.

Thank you.

Chairman SHELBY. We are going to leave the record open for

questions because of the vote on the floor. We have a number of

questions. We have a number of Members of the Banking Committee that are on the Floor. They could not be here. They are in

the debate there.

Gentlemen and Ms. Williams, thank you for appearing before the

Committee. We think this is a very important issue.

The hearing is adjourned.

[Whereupon, at 11:51 a.m., the hearing was adjourned.]

[Prepared statements, response to written questions, and additional material supplied for the record follows:]

37

PREPARED STATEMENT OF SENATOR CHARLES E. SCHUMER

Mr. Chairman, thank you holding this hearing today. The world is a different

place than it was before September 11, 2001. New York has been profoundly affected by the horrific events of that day. The enactment of the Terrorism Risk Insurance Act has been vital to New York. It has translated into thousands of jobs and

desperately needed economic activity for New York City, the region, and the entire

country.

Back in 2002, Senators Dodd, Sarbanes, Reid, and I argued with our colleagues

who argued that the free market would solve the issue of terrorism insurance. The

Treasury and some Congressional Republicans were against the bill then and it appears they still are.

I am concerned about the consequences of not reauthorizing the Act, which I believe could be very significant and disruptive to the economy. I am not confident

that the private sector will do this without governmental involvement. How can the

Treasury not support reauthorization of this Act, which is a job producer and economic stimulator? We cannot let ideology stand in the way of economic revitalization.

If Treasury does not want the Act extended, tell us so. The Act has been a success

for New York and for the country. We should not endanger that success by creating

uncertainty and instability about the availability of terrorism insurance. I believe

that the cost of this uncertainty and resulting instability is too high a price to pay.

Can we as a country afford that cost if the terrorists should strike again here? I

do not think we can and will do all I can to ensure against such a result.

We are not over the threat of terrorist attacks. The President has repeatedly told

us that the war on terrorism is a long-term undertaking. I believe that terrorism

risk insurance is a basic part of that undertaking. It will allow us to keep economic

activity on track in this brave new world. The Government/private sector responsibilities in the Act will make that possible.

I know firsthand the aftermath of the September 11 attacks and hope and pray

that no area in the United States will have to experience such a tragedy in the future. I believe that if such a tragedy should occur, Americans must be provided the

tools with which to rebuild their lives. Terrorism insurance is one of those tools.

I look forward to hearing today’s testimony and working with the Committee toward reauthorization of this important legislation.

—————

PREPARED STATEMENT OF E. BENJAMIN NELSON

A U.S. SENATOR FROM THE STATE OF NEBRASKA

MAY 18, 2004

Mr. Chairman and Members of the Committee, I appreciate the opportunity to appear before your Committee today to offer my comments on the Terrorism Risk Insurance Act that we enacted into law almost 2 years ago. I strongly supported passage of the bill at that time, and I believe that, if we begin soon, we can pass a

reauthorization of that Act, and even improve it, yet this year. I recognize that may

be a daunting task, but I believe we can and should act before the end of this Congress. And we need to strengthen the Act by adding coverage, with a second pool,

for the group life and health carriers.

I would like to commend you, Mr. Chairman and Members of the Committee, and

especially Senator Dodd, who worked so hard on passing this measure in the last

Congress, for your leadership on this important issue 2 years ago—it was critical

to act as we did. And I also applaud you for your leadership in revisiting the issue

at this critical time.

Mr. Chairman, in the wake of the tragic events of September 11, this Nation has

endured the wrenching emotional effects of the loss of life and human suffering resulting from those evil acts. The Nation’s soul has been affected, forever. None of

us will ever forget our grief over the human losses of that day, nor should we.

But we all can understand also the extent of economic disruption and loss which

has ensued in the aftermath of that day. While it pales in comparison to the emotional costs wrought by the terrorists, the cost to our economy has been enormous.

Investment has been curtailed. Construction projects have been postponed or cancelled. Jobs have been lost. Our entire economy has suffered.

But it could have been so much worse, Mr. Chairman. In the weeks and months

following September 11, Congress and the President came together to provide a

measure of protection for our Nation’s critical economic infrastructure. Recognizing

the effect that massive terrorist attacks could have on the ability of the Nation’s

38

insurance carriers to pay claims resulting from such attacks, and the difficulty in

predicting such events, Congress moved to provide Federal ‘‘backstop’’ legislation, in

effect, a guarantee that would help insurers cover excessive loses in the event of

another even more catastrophic event. Unfortunately, such events are no less likely

today than they were in the days, weeks, and months following September 11.

As the Government Accounting Office has recently reported, the Terrorism Risk

Insurance Act has served us well since its enactment. In the troubled time after

September 11, it has provided a stabilizing effect on the property and casualty industry and affordable protection for American businesses. Had we failed to provide

this Federal backstop when we did, Mr. Chairman, the effect on our economy would

have been disastrous. In the months following September 11, while the Congress debated whether to provide this protection, lending on commercial real estate projects

in high-threat areas was severely curtailed. Disruption in the property/casualty industry loomed. Reinsurance was scarce or nonexistent. Workers’ compensation programs were threatened. The banking and securities industries were adversely

affected.

But following enactment of TRIA, construction projects could resume, with the assurance that catastrophic losses could be covered. Lending on commercial real estate

projects could again be secured. Construction jobs returned. The economy began to

right itself. Of course, there were those at the time who resisted pledging the Federal Government’s backing for possible catastrophic losses. But the Congress ultimately did the right thing, recognizing that there was no alternative. The industry

simply could not accurately assess the risk, and certainly could not charge premiums sufficient to adequately cover the catastrophic risks.

Critics of the legislation point out that the relatively low take-up rate is an indication that the legislation is not necessary. That criticism, I believe, is misplaced. The

take-up rate is a poor measurement of the need for the Federal backstop. Commercial interests located outside of high-risk areas such as New York, Washington, Los

Angeles, and other major metropolitan areas naturally do not consider the high cost

of coverage to be justified, given the low risk of a terrorist attack in those areas.

And the cost of coverage remains very high. But it is worth providing this protection

to those who desperately need it. It is essential to our economy that commercial interests in relatively high-threat areas continue to have this coverage available.

Since enactment, there has also been criticism, Mr. Chairman, that the industry

has failed to develop private solutions to the challenges presented in this new, postSeptember 11 environment. Of course, TRIA was originally conceived and passed as

a temporary program, a bridge to a time when the risk of terrorist acts would abate,

and the market could adjust accordingly. While I still believe that it may be possible, over the long-term, to achieve these goals, is there any among us who believes

that the risk of another attack has diminished? It has been reported in the media

that some 30 planned attacks have been thwarted by Homeland Security efforts

since September 11. I hate to say it, but I believe that another attack or series of

attacks on our soil is almost inevitable, and that there is a possibility that future

events could make September 11 pale by comparison. It is essential that we extend

the Act. It is completely unrealistic to expect that the industry can, in 2 or 3 years’

time, adequately restructure itself to ensure its ability to cope with such catastrophic losses. In fact, to expect the industry to ever be able to adequately assess

the risk of a major terrorism incident—where, when, how, and with what results—

in the high-threat environment that we face today, is unrealistic. Only when we

have won the war on terrorism will the threat abate. And who can say when that

will be? And in the meantime, how can the industry assess premiums to build adequate reserves to cover what could be incomprhensible losses? In the end, it all

comes down to, how do you adequately assess the risk? It is impossible, Mr. Chairman, in a terrorist environment.

We need to reauthorize TRIA. And we should do so yet this year. While I am confident that Treasury will exercise its authority to extend the make available provisions of the Act through next year, the problem with expiration of the Act at the

end of 2005 begins to manifest itself at the end of this year. Policies are generally

written for the term of one year. Obviously, those policies written after December

31, 2004, will extend into 2006, leaving backstop coverage unavailable for the latter

part of the term of those policies.

As the Members of this Committee are aware, the House Financial Services Subcommittee on Capital Markets, Insurance, and Government Sponsored Enterprises

held a joint hearing with the Subcommittee on Oversight and Investigations on

April 28 to begin consideration of the issue in the House. At that hearing, the Superintendent of the New York Department of Insurance, Mr. Greg Serio, expressed

the strong support of the National Association of Insurance Commissioners for reauthorization this year. Mr. Chairman, I am a former insurance commissioner and

39

former head of the NAIC, as well as a former insurance company executive, and I

can certainly understand and appreciate, from a regulator’s point of view, the concerns about the safety and solvency of the industry. I applaud the regulators for

supporting the early reauthorization of TRIA.

I will concede, Mr. Chairman, that TRIA, as we enacted it 2 years ago, is not perfect. There were those of us who sought to include the group life industry within

the coverage of the Act. I worked long and hard to include coverage for group life

when we passed the first bill, and was disappointed in the determination of the

Treasury that coverage under the Act would not be provided. And problems also remain for workers’ compensation carriers under the law. We need to look at those

issues.

Mr. Chairman, I believe we should attempt to address these shortcomings as we

undertake to devise reauthorization language. I know that this approach will compound our efforts to pass legislation yet this year. But I also believe that the success

of TRIA, and the continuing high-threat level over the past 2 years, may work to

convince many of our reluctant colleagues of the need to act this year.

As to the question of coverage for group life insurance, it seems obvious that the

concentration of risk issues which justify coverage for property and casualty carriers

under the Act extend as well to group life coverage. Employers with large numbers

of employees in concentrated locations need this protection if they are to continue

to provide this important employee benefit. For many of America’s workers, group

life insurance may be the most significant protection for their families in the event

of the premature loss of the family breadwinner. Group life insurance today covers

nearly 160 million Americans, and represents 40 percent of all life insurance in

force, $6 trillion of protection for American families. The Committee is aware, I

know, that the reinsurance market for group life has also been severely disrupted,

and in most cases is no longer available, or priced too high to be realistic.

And the same concentration of risk issues work severe. Difficulties in the workers’

compensation area. Carriers are required by statute to provide ‘‘all risk’’ coverage,

and thus they are now faced with the possibility of concentrated catastrophic losses

which could result from nuclear, biological, chemical, or radiological attack. This has

caused disruption in underwriting for workers’ compensation since September 11,

and those problems have not been alleviated by TRIA. We need to work with the

industry as we develop reauthorization language, and we should do it this year.

Mr. Chairman, I appreciate the opportunity to give this Committee my views on

this important, indeed vital, issue. I urge the Committee to move forward with all

due speed in expanding coverage and reauthorizing the Terrorism Risk Insurance

Act. Thank you for your consideration of my views.

—————

PREPARED STATEMENT OF BRIAN C. ROSEBORO

UNDER SECRETARY FOR DOMESTIC FINANCE

U.S. DEPARTMENT OF THE TREASURY

MAY 18, 2004

Thank you, Chairman Shelby, Ranking Member Sarbanes, and Members of the

Committee on Banking, Housing, and Urban Affairs for this opportunity to testify

today on the implementation of the Terrorism Risk Insurance Act (TRIA) of 2002.

The market for property and casualty terrorism risk insurance was significantly

affected by the terrorist attacks of September 11, 2001. In the aftermath of September 11, reinsurers by and large refrained from offering coverage for property and

casualty terrorism risk or offered reinsurance coverage at costs that were generally

considered prohibitive. This then caused property and casualty insurers in general

to respond by excluding terrorism coverage from commercial property and casualty

insurance policies, leaving many American businesses exposed and uninsured. Perhaps the most notable negative impact of this development was the drag it created

on businesses’ ability to finance new job-creating economic activity in the midst of

our economic downturn caused in part by the events of September 11.

To address this condition, Congress enacted TRIA in the fall of 2002. TRIA establishes a temporary Federal program of shared public and private compensation for

insured commercial property and casualty losses resulting from acts of terrorism

covered by the Act. TRIA in effect places the Federal Government in the property

and casualty terrorism risk reinsurance business through December 31, 2005.

By most indications, TRIA has been successful in achieving the fundamental goal

of enhancing the availability and affordability of property and casualty terrorism

risk insurance, particularly for economic development purposes. No longer are heard

40

the same level of concerns from real estate developers, for example, that new

projects are on hold because financing has been frozen by a lack of terrorism risk

insurance. In terms of affordability, while the information is still somewhat preliminary, accounts that we have seen indicate that premiums for terrorism risk insurance have decreased significantly throughout the early stages of TRIA and continue

to do so.

Despite TRIA’s apparent success, there have been widespread reports that the

‘‘take up’’ rates for TRIA coverage have been low, or in other words, the demand

for this coverage has been low. Whether this reflects a lack of interest in terrorism

risk coverage at current prices, a lack of awareness of the availability of coverage,

an assessment by businesses of low terrorism loss risk, or some combination of the

above will require careful study and analysis of information reflecting as comprehensive a view of markets as possible.

Treasury’s Implementation of TRIA

Treasury has the chief responsibility for implementing the Federal reinsurance

backstop that was established under TRIA. In broad terms, as Treasury has undertaken the overall implementation of TRIA, we have focused on five main administrative goals: Ensuring that the program was operable immediately; implementing

the program in a transparent manner; relying on the State insurance laws and regulatory structure as much as possible; allowing insurers to participate in program

through their normal course of business where possible; and ensuring that insurance benefits, if needed, can be provided in an expedited manner.

Perhaps the most daunting, immediate administrative task was to prioritize and

undertake the actions needed to make the program operational right away. One of

the key factors in this regard was that TRIA became effective immediately on November 26, 2002, when the President signed the Act into law. The instant effective

date of TRIA meant that terrorism exclusions on existing insurance policies were

removed and all policyholders had the ability to secure coverage for terrorism risk.

In addition to the effective date, Treasury also had to address the wide range of

businesses, insurance companies, and types of policies that are affected by TRIA.

To address the immediate effective date of TRIA and provide the necessary guidance to the insurance industry and others to make the program operational, Treasury’s first action was to issue promptly a series of three interim guidance notices.

The first interim guidance notice was issued on December 3, 2002, about 1 week

after TRIA was signed into law. Other interim guidance notices were issued on December 18, 2002, and January 22, 2003. Treasury relied on the process of issuing

interim guidance notices because it provided us with the ability to respond quickly

to implementation issues, and to prevent confusion prior to the issuance of formal

regulations. These interim guidance notices provided the basis for insurance companies to proceed with offering coverage by addressing issues such as: Compliance

with TRIA’s required disclosure and ‘‘make available’’ requirements; determining

what insurers were required to participate in the program and how their deductibles

would be calculated; and the scope of coverage under the program.

Even while the interim guidance process went forward we began the next step in

the implementation process of preparing formal rulemakings that would incorporate

and supercede our interim guidance. In general, the first rules were issued as interim final rules, as authorized in the statute, because of the immediate operational

needs. The first interim final rule was issued on February 28, 2003. That rule and

an interim final rule that was issued on April 18, 2003 took many of the issues that

were addressed in interim guidance notices and transformed them into formal implementing regulations. Subsequent rulemakings have addressed issues associated

with State residual market mechanisms, claims processing, and litigation management. Overall, Treasury has published two interim final rules and three proposed

rules, and three of these rulemakings have been finalized.

It is important to stress that while we have been moving progressively through

the rulemaking process, the program from the beginning has been and continues to

be fully operational. These rules have been put forward as refinements to and improvements on practices and operations, but from the earliest days of the program,

we have had procedures and resources ready to respond to any covered event that

might arise.

In addition to the regulatory actions outlined above, Treasury has also created

and staffed a Terrorism Risk Insurance Program (TRIP) office to administer the Act.

Among its accomplishments, the TRIP office has developed systems to handle claims

processing, payment, and auditing of claims should a covered event occur. The TRIP

office has been working to provide detailed operating procedures for claims filing,

processing, and payment that are separate from the claims procedures regulation.

Also, the TRIP office has been consistently responding to requests for interpretation

41

of the Act and its regulations from insurers; many of those interpretations have

been made available to the general public on the TRIP website (www.treas.gov/trip).

TRIA created an interesting hybrid program jurisdictionally; it provides a Federal

reinsurance backstop to commercial property and casualty insurance entities that

are regulated almost exclusively at the State level. This type of program would likely be unmanageable without the cooperation of the State insurance regulators—cooperation among themselves and cooperation with the Federal Government.

Throughout the implementation process, Treasury consulted and worked closely

with the NAIC, and the NAIC’s assistance has been invaluable in implementing

TRIA. We look forward to continuing to work closely with the NAIC regarding

Treasury’s remaining responsibilities under TRIA.

Comprehensive Market Information and Analysis Requirement

An important requirement of TRIA is to implement the Act with a careful eye on

market conditions and developments, and report to Congress. In particular, Treasury is required to report to Congress by June 30, 2005, on an itemized list of issues

associated with the Act and its purposes. Specifically, Treasury is required to

assess——

• The ‘‘effectiveness of the Program;’’

• The ‘‘likely capacity of the property and casualty insurance industry to offer insurance for terrorism risk after termination of the Program;’’ and

• The ‘‘availability and affordability of such insurance for various policyholders, including railroads, trucking, and public transit.’’

Together with this analysis, Treasury is also required under TRIA to compile information on premium rates for property and casualty terrorism risk insurance.

To assist in the evaluation of the Act’s effectiveness and to meet TRIA’s premium

information collection requirement—and to ensure that we do so with as comprehensive a view of the markets as possible—Treasury has contracted with an outside

survey research firm to conduct a comprehensive survey with a nationally representative sample of policyholders and insurers. Some of the information being collected through the surveys includes the cost of terrorism risk insurance as compared

to total insurance within eligible lines, basic financial data, insurance deductibles

and limits for terrorism as compared to nonterrorism insurance, use of reinsurance

and self insurance, and the types of risk management programs.

Each company chosen for the survey will be contacted at least twice and possibly

three times (depending on its policy renewal dates) in order to capture effects of

changes in TRIA’s insurer deductibles in successive program years. The first survey

wave collected data from 2002 and 2003. Surveys for the first wave were mailed out

late in 2003 and early 2004 to over 30,000 policyholders and almost 500 insurers.

A second survey wave to collect 2004 data is planned for early this fall, and the last

survey wave is planned for January and February of 2005. This phased structure

will allow us to move beyond snapshots and anecdotal evidence to obtain a broader

and more dynamic view of the conditions in the marketplace. We believe anything

less would not provide to the Secretary the full and reliable information needed to

make the careful, trustworthy, and responsible evaluation called for by Congress in

the statute.

The completed survey results, as well as consultations with a wide range of interested parties, will form the basis for Treasury completing by the June 30, 2005 statutory deadline its report to Congress on the effectiveness of TRIA and the capacity

of the property and casualty insurance industry to offer insurance for terrorism risk

after termination of the program.

Determination on Extending the ‘‘Make Available’’ Requirement

The Secretary of the Treasury is required by TRIA to determine by September 1,

2004, whether to extend the ‘‘make available’’ provisions into the third year of the

program (that is, through December 31, 2005). The ‘‘make available’’ provisions of

TRIA require that, from the date of enactment (November 26, 2002) through the last

day of the second year of the program (December 31, 2004), each insurer must make

available, in all of its commercial property and casualty insurance policies, coverage

for insured losses under the Act. In this regard, TRIA also requires that such insurance coverage must not differ materially from the terms, amounts, and other

coverage limitations applicable to losses arising from events other than acts of terrorism.

TRIA requires that Treasury’s determination on whether to extend the ‘‘make

available’’ requirements through the third year of the program be based on the same

statutory factors described above that are to be considered in Treasury’s overall

study of the effectiveness of TRIA.

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Treasury is now developing a base of information from which the Secretary can

make this required determination, consistent with the terms of the Act. As part of

the information gathering process, on April 29, 2004, Treasury submitted to the

Federal Register for publication a request for comments regarding the Secretary’s

determination of whether to extend the ‘‘make available’’ requirements of the Act

into the third year of the program. Comments will be accepted through June 4,

2004. We encourage anyone who has views on this question to respond to this request for comments with as much detail as they can provide.

In making this determination, however, while examining similar issues as those

outlined for the larger examination due by June 2005, Treasury will be looking at

those issues with the specific, narrow focus of the ‘‘make available’’ question, and

with the use of much less information than will be available for the larger, broader

study. Therefore, each examination will be conducted independently of the other.

Conclusion

We must all remember that the basic goal of TRIA was to develop a temporary

backstop for property and casualty terrorism risk insurance so that private markets

would have a chance to adjust. We encourage insurance companies, state insurance

regulators, other financial services providers, and other interested parties to think

creatively in this regard, and to consider what methods can be employed to allow

for broader private sector involvement in the market for managing property and casualty terrorism risk. Treasury looks forward to completing our review of the effectiveness of TRIA and considering the many complicated issues presented to us in

a thorough manner with the best information that can be obtained. Our obligations

to the taxpayers, and the need for the long-term health and vitality of our financial

markets, require nothing less.

In summary, while we hope that we will never be called upon to trigger coverage

under TRIA, the program stands ready today—as it has from its earliest days—to

meet its responsibilities. The extensive work done by Treasury in developing the

basic framework of TRIA through interim guidance notices and regulations, the proposed claims regulations, the drafting of claims forms and review with industry organizations and the NAIC, and contingency procurement plans, all have contributed

to an effective program that the Treasury will continue to refine over the life of the

program. We look forward to moving forward with the implementation process and

evaluating the effectiveness of the program in the weeks and months ahead.

—————

PREPARED STATEMENT OF DONNA LEE WILLIAMS

DELAWARE COMMISSIONER OF INSURANCE

ON BEHALF OF THE

NATIONAL ASSOCIATION OF INSURANCE COMMISSIONERS

MAY, 18, 2004

Introduction

My name is Donna Lee Williams. I am the Commissioner of Insurance for the

State of Delaware, and this year I am serving as Chair of the Terrorism Insurance

Implementation Working Group of the National Association of Insurance Commissioners (NAIC). Speaking for myself and my fellow insurance commissioners, we appreciate the opportunity to testify regarding the role of the Federal Government in

making sure that insurance against acts of terrorism remains available to American

consumers and businesses.

Today, I want to make three basic points:

• First, there is still a need for the Federal Government to provide appropriate financial back-up to the private insurance market in order to assure that segments

of our Nation’s economy do not falter due to a lack of insurance coverage for terrorism. The insurance marketplace is not yet ready to take on the risk of providing coverage for acts of terrorism on its own.

• Second, the Treasury Department should extend the ‘‘make available’’ requirements in TRIA so that businesses across America will know they can purchase

the terrorism insurance coverage they need to sustain a healthy economy.

• Third, Congress should act this year to extend coverage under the Terrorism Risk

Insurance Program (TRIP), or enact a comparable Federal backstop for acts of terrorism, at least through 2006 because the commercial insurance markets are not

yet prepared to underwrite sufficient terrorism coverage without a Federal backstop.

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Following enactment of the Terrorism Risk Insurance Act (TRIA), the NAIC appointed a Terrorism Insurance Implementation Working Group of State regulators

that has worked closely with the Treasury Department to successfully implement

the Act’s provisions, as well as to monitor the impact it has had on the insurance

marketplace. Although we observe that the take-up rate for terrorism insurance coverage mandated under TRIA has not been widespread, coverage is available for

those businesses and industries that want to purchase it. We believe the presence

of the Federal backstop has provided a measure of comfort to the insurance industry, and has encouraged insurers to offer coverage for acts of terrorism that might

not have considered otherwise in the wake of the tragic events of September 11.

The NAIC’s Terrorism Insurance Implementation Working Group believes there

are two ways that Congress can help to continue the progress that has been made

in restoring the market for terrorism insurance. The first is to encourage the Secretary of the Treasury to make an early determination that he will impose the

‘‘make available’’ requirement in Section 103(c)(2) of TRIA to all participating insurers for the third year of the Terrorism Risk Insurance Program (TRIP). The second

is for Congress to act this year to extend the expiration date contained in TRIA Section 108(a) to a future date that is consistent with the business cycle for terrorism

insurance renewals.

Congress Should Extend the ‘‘Make Available’’ Requirement

Insurance regulators believe that extending the present ‘‘make available’’ requirement in TRIA through 2005 will help ensure marketplace stability by continuing the

availability of terrorism insurance in all parts of the United States. If insurers are

not required to offer coverage, areas that face low risk of losses from acts of terrorism would probably experience little disruption. However, those areas of our Nation and prominent cities with attractive targets for terrorist activity might face

availability and affordability problems. This would have a negative impact on their

local and regional economies, particularly real estate development.

During the first week of May 2004, insurance regulators began receiving contingency filings from Insurance Services Office, Inc., the Nation’s largest insurance advisory organization. In the event Congress does not extend the TRIA program this

year, these policy form filings would reinstate terrorism coverage limitations that

were in effect prior to TRIA’s enactment for any policies written for coverage that

extends into 2006. In addition to protecting insurers from additional terrorism liability, these filings demonstrate the insurance industry is not willing to assume the

risk of terrorism losses by themselves at this time.

The NAIC’s Terrorism Insurance Implementation Working Group believes TRIA’s

‘‘make available’’ requirement has contributed to the overall effectiveness of the program during its first 2 years. American businesses—both large and small—have

been offered choices they might not otherwise have had. Through the ‘‘make available’’ provision, TRIA has given them the opportunity to make an informed choice

regarding the purchase of coverage for acts of terrorism.

There are many who believe that the U.S. economy remains vulnerable to terrorist attack. This is evidenced by an increased take-up rate for terrorism coverage

observed in a recent survey conducted by Marsh, Inc. In its fourth quarter 2003 survey, Marsh found that 32.7 percent of companies surveyed purchased terrorism coverage, compared with 23.5 percent in the second quarter and 26.0 percent in the

third quarter.

One of the elements the Treasury Department is required to consider is the capacity of the insurance industry to accept the risk of losses from acts of terrorism. Insurance capacity is generally measured by determining the amount of capital and

surplus available to insurers to support their writings. Using that measure, NAIC

data shows 2003 was a profitable year for property and casualty insurers, with aggregated policyholder surplus increasing approximately 26 percent to $375 billion.

It should be noted however, that policyholder surplus declined each year from 1999

to 2002, and the $375 billion figure is only 4.3 percent higher than the $360 billion

in policyholder surplus held in 1999. Furthermore, less than half of those funds are

used to support commercial lines writings. As part of considering whether the insurance industry has sufficient capacity to underwrite the risk of terrorism losses, the

Treasury Department must consider whether the industry is willing to put its capital at risk. We believe the answer is no.

Insurers and the marketplace at large are finding it very difficult to accurately

price coverage for acts of terrorism. Unknown frequency, coupled with the potential

for severe losses, makes coverage for acts of terrorism one that insurers might

choose to avoid if given the opportunity. Until insurers and their reinsurers become

more comfortable that Government efforts are adequate to protect citizens from terrorist acts, or at least become more predictable than they are today, they will be

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1 American Academy of Actuaries, P/C Extreme Events Committee May 4, 2004 Report, P/C

Terrorism Coverage: Where Do We Go Post-Terrorism Risk Insurance Act?, Page 14.

reluctant to accept complete risk transfers from American businesses. In particular,

those businesses viewed by insurers as having a greater risk of terrorism losses will

have trouble finding insurance.

Consequently, the NAIC’s Terrorism Insurance Implementation Working Group

urges the Treasury Department to extend the ‘‘make available’’ requirement into

Program Year Three of TRIA. This action will help avoid market disruptions which

might otherwise occur, and will ensure the insurance market’s continued role supporting economic development.

Congress Should Extend the Terrorism Risk Insurance Program

The NAIC urges action by Congress this year on a Federal solution to ensure continued marketplace stability when TRIA expires at the end of 2005. Because some

terrorism risks are largely uninsurable without a financial backstop, State regulators are very concerned that significant market disruptions will develop before

TRIA’s expiration. This is due in large part to the deadlines contained in TRIA,

which do not match the business cycle for insurance renewals.

The commercial insurance business cycle operates in such a way that insurers and

their policyholders will be required to make decisions as early as September 2004

regarding coverage well into 2006. At present, annual policy renewals with effective

dates of January 2, 2005 or later must contemplate there will be no Federal backstop for any losses occurring in 2006. For this reason, State insurance regulators

anticipate widespread insistence by insurers that conditional policy exclusions for

terrorism coverage be included in renewal policies starting later this year. This is

the same situation we encountered in the aftermath of September 11, which prompted enactment of TRIA.

To address this situation, Congress could simply change one line of TRIA. If Section 108(a) were changed to read ‘‘The Program shall terminate on December 31,

2007,’’ then Congress would be able to receive the report from the Treasury on June

30, 2005, and would thus have roughly 15 months to digest and debate the future

Federal role related to acts of terrorism before reaching another milestone for insurers and American businesses.

An alternative to extending the expiration date of TRIA would be to extend the

coverage period in TRIA without extending the actual effective date in the law. This

could be accomplished by amending Section 108(a) as follows: ‘‘The Program shall

terminate on December 31, 2005, however, the Program shall continue to provide

shared public and private compensation for insured losses resulting from acts of terrorism for policies or contracts issued or renewed before December 31, 2005, until the

policy expiration date or 1 year from their inception or renewal date, whichever is

less.’’

Another alternative is to develop a different type of Federal backstop for acts of

terrorism that provides some form of funding for the risk of losses resulting from

acts of terrorism.

The NAIC stands ready to assist Congress in developing an appropriate method

for continuing the Federal terrorism reinsurance backstop.

Workers’ Compensation and Group Life Insurance

There are two major types of insurance that cause insurers special concern about

whether they can continue to underwrite them without some form of assistance from

the Federal Government. The first is workers’ compensation, which is a propertycasualty product that provides coverage for work-related injuries and illness. It

covers lost wages, provides unlimited medical benefits and, in most States, provides

rehabilitation benefits to get injured workers back on the job. In the event of death

on the job, worker’s compensation provides a monetary death benefit to the surviving spouse and children. It also provides employers with liability coverage if an

employee pursues legal action against an employer in court. Workers’ compensation

is currently included under TRIA.

State laws do not allow an insurer to exclude or limit worker’s compensation coverage, except as permitted by State law. As a result, an insurer underwriting this

risk without adequate reinsurance is subject to a large potential loss if there are

a significant number of employees at a single location. The American Academy of

Actuaries estimates that ‘‘a modest-sized insured with 200 employees could easily

generate a terrorism related event of $50 million. This presumes death of all employees and typical death benefit of $250,000 per employee.1’’

The second type of coverage causing insurers special concern is one that is not

currently included in TRIA—namely group life insurance. Like workers’ compensaVerDate 11-MAY-2000 16:59 Dec 08, 2005 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6621 24851.TXT SBANK4 PsN: SBANK4
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tion, this insurance coverage is vulnerable to risk concentration problems. For example, if a business has 1,000 employees at a given location, the pricing employed

by life insurers for group products probably assumes that three or four employees

might die in a given year. If instead, a location with 1,000 employees is hit by a

terror attack and all of them die, the insurer has an enormous financial exposure

from a single occurrence.

Unlike workers’ compensation, there is no statutory requirement for group life

that prohibits an insurer from limiting available coverage for acts of terrorism in

some fashion. However, the employer, the insurer, the insurance industry in general, and the American economy would suffer if an insurer is only able to pay a fraction of the policy face amount in a mass casualty situation. Furthermore, State insurance regulators are not inclined to approve exclusionary or limiting language in

those States that have approval authority over the wording in group life insurance

contracts. Although there is some level of private reinsurance available for group

life coverage, it is not sufficient to cover a catastrophic terrorism loss situation.

While the NAIC has not taken on formal position on whether group life should be

included in TRIA or another form of Federal backstop, I wanted to alert you that

regulators have heard these concerns expressed by group life insurance underwriters.

Conclusion

We strongly urge Congressional action to extend TRIA this year, or enact an alternative form of Federal backstop for acts of terrorism, in order to avoid market

disruptions likely to occur in the absence of a Federal backstop program. Such

action will ensure the insurance market’s continued role supporting economic development. In addition, it will allow Congress adequate time to fully evaluate the

Treasury Department’s June 2005 report and recommendations.

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1The report can be found at: http://www.consumerfed.org/terrorismlinsurancelreport.pdf.

PREPARED STATEMENT OF J. ROBERT HUNTER

DIRECTOR OF INSURANCE, CONSUMER FEDERATION OF AMERICA

MAY 18, 2004

Good morning, Mr. Chairman and Members of the Committee. I am J. Robert

Hunter, Director of Insurance for the Consumer Federation of America. CFA is a

nonprofit association of 300 organizations that, since 1968, has sought to advance

the consumer interest through research, advocacy, and education. I am a former

Federal Insurance Administrator under Presidents Ford and Carter and have also

served as Texas Insurance Commissioner.

I have drawn many of my conclusions regarding the Terrorism Risk Insurance Act

of 2002 (TRIA) based on my experience administering a similar Federal reinsurance

plan, the Riot Reinsurance Program. This program kept insurance in the inner cities

in the early 1970’s, when riots threatened the withdrawal of property insurance

from the Nation’s inner cities. We charged insurers actuarially sound premiums for

the reinsurance and, when the program was terminated, taxpayers actually realized

a profit from the transaction.

The Nation’s terrorism insurance law is not necessary to ensure the availability

of affordable terrorism coverage for most areas of the country and should be allowed

to expire. CFA reached this conclusion after undertaking a major study of the workings of TRIA and of current market conditions for property/casualty insurance. A

copy of the report is attached to this testimony.

We found that insurance experts have set terrorism insurance rates for the third

year of the program, 2005, at quite low levels in most of the country and that, according to insurance risk models, private insurers will be completely responsible for

all terrorism insurance losses in all but nine large cities by 2005.

The study clearly documents that the insurance industry is more than ready to

stand on its own two feet and that taxpayer back up should end. The ability of the

industry to insure against terrorism is enormous and growing, profits are quite substantial, and the financial condition of insurers overall is rock solid. Profits leapt

ten-fold in the last year, and surplus (retained earnings) skyrocketed by $65 billion!

However, if Congress decides to keep some form of back up, it should only target

the few areas of the country where getting affordable terrorism coverage might be

a problem. Congress should also require insurers to broaden the amount of coverage

they offer, pay for the reinsurance that taxpayers provide, only back up truly large

terrorism events, and increase incentives for the further development of a private

terror insurance market.

Background on TRIA and Major Findings

TRIA created a 3-year program in which the Federal Government covers 90 percent of all terrorism-related insurance losses (up to $100 billion a year) after individual insurance companies pay an initial deductible. Insurers, who are required to

offer terrorism coverage, must repay very little or no assistance. The Act ends on

December 31, 2005, unless renewed by Congress.

The CFA study, The Terrorism Risk Insurance Act: Should It Be Renewed?, assesses current prices for terrorism insurance and the increasing ability of the property/casualty insurance industry to cover terrorism losses without taxpayer back

up.1 CFA based its analysis in large part on a determination by the Insurance Services Office (ISO) that the risk of terrorism in the United States varies geographically:

• Areas with a high risk of attack are: New York City; San Francisco County;

Washington, DC; and Cook County, Illinois (Chicago);

• Areas with a moderate risk of attack are: Suffolk County, Massachusetts (Boston);

King County, Washington (Seattle); Los Angeles County; Harris County, Texas

(Houston); and Philadelphia County.

• The remainder of the country is at a low risk of attack.

The report has several major conclusions:

1. Terrorism insurance rates are relatively low in most areas of the country and will continue to be so when TRIA expires, as industry experts have

concluded that most of the country has no significant terrorism risk under TRIA.

Based on data collected by ISO, CFA estimates that terrorism insurance rates will

be extremely low in these areas when TRIA expires. For example, in the lowest risk

areas of the country, CFA calculates that a $10 million building with $5 million in

contents would cost only $300 to insure against terrorism once the law expires, the

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same cost as in the final year of TRIA. In moderate risk areas, this cost would only

be $6,526 when TRIA expires, $326 more than during the last year of the program.

2. The private sector will cover all terrorism losses in all but nine large

cities by 2005, before TRIA expires. Even in those nine areas, insurers will

be covering the vast majority of the risk. This is according to the calculations

of the ISO model regarding the risk of terrorist attacks, including attacks using

weapons of mass destruction (WMD) and other catastrophic possibilities. This

means that the insurance industry should have the capacity to cover all but perhaps

the most risky areas of the country without help from taxpayers. In the five moderate-risk cities mentioned above, private insurers will be covering 95 percent of the

risk by 2005. In the four high-risk areas of the country, insurers will be covering

70 percent of the risk.

3. Commercial insurance buyers in most of the Nation are reluctant to

buy taxpayer-backed insurance coverage. This is because of the perception that

terrorism will not impact them and that, even at very affordable rates, the price is

too high. According to a recent survey by the Council of Insurance Agents and Brokers, half of the commercial brokers they questioned said that only 20 percent of

their clients are actually buying federally backed terrorism insurance.

4. Industry experts have projected that terrorism insurance losses will be

relatively modest. ISO has projected terrorism insured losses annually to be $5.75

billion before tax considerations. To put this projection into perspective, industry

losses on September 11 have recently been lowered to $30 to $35 billion before tax

considerations (about $20 billion after taxes). ISO thus projects a September 11

level of loss just about every 6 years.

5. Insurers are in an excellent financial position to cover all terrorism

losses after TRIA expires. The profits of insurers selling TRIA-backed terror coverage are excellent, as is the financial solidity of the industry. The return on equity

for four of the five top stock insurance groups exceeded a very substantial 16 percent in 2003. These profits are expected to remain good for some years to come, as

the industry continues to benefit from a ‘‘hard market’’ cycle that has kept premiums and profits high. Overall, the property/casualty insurance industry added 22

percent to policyholder surplus in 2003 (a whopping $65 billion) according to A.M.

Best and Co. Meanwhile, financial soundness, which is measured by the amount of

surplus the industry has compared to the coverage it has extended (net written premium), is very strong.

Public Policy Recommendations

Based on the relatively low risk of terrorism attacks and low rates in much of

the country, as well as strong industry profitability and financial soundness and the

growing capacity of insurers to offer terrorism coverage, CFA found no compelling

reason to extend TRIA at the end of 2005. The only possible reason Congress might

want to consider some form of limited taxpayer back up after TRIA expires would

be to assist the nine cities at moderate or high risk of terror attacks.

However, if Congress considers such a plan, it should:

• Target only the cities where the risk of attack is moderate or high. In fact,

it is highly unlikely that the five cities at moderate risk of attack will need assistance, as 95 percent of all potential terrorism losses will be covered by the insurance industry by the end of 2005.

• Increase the deductibles that insurers must pay for losses in these few

cities. CFA suggests an industry-wide deductible of $50 billion after tax considerations—a pretax deductible of $77 billion—for the first year of a new program,

increasing by $10 billion a year thereafter.

• Increase the share of losses that insurers must pay above the deductible

amount from 10 percent to 15 percent, increasing by 5 percent a year.

• Only provide taxpayer back up for truly exceptional terrorist events, such

as attacks with WMD, and

• Ensure that taxpayers pay no costs for backing up terrorism losses. The

Treasury Department should require that insurers pay premiums for the coverage

that taxpayers are providing that are actuarially sound, if a not a little higher

than estimated taxpayer costs. Requiring insurers to pay rates that are slightly

higher than estimated will encourage private insurance mechanisms to quickly

compete by offering lower rates.

I hope you will keep in mind these findings, which are based on a market assessment being used by the insurance industry itself, when considering the future of

TRIA. The evidence strongly suggests that it is no longer necessary for taxpayers

to provide free reinsurance to property-casualty insurers.

Thank you. I will be happy to respond to your questions at the appropriate time.

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PREPARED STATEMENT OF JOHN J. DEGNAN

VICE CHAIRMAN AND CHIEF ADMINISTRATIVE OFFICER

THE CHUBB CORPORATION

ON BEHALF OF

AMERICAN INSURANCE ASSOCIATION,

COUNCIL OF INSURANCE AGENTS & BROKERS,

THE FINANCIAL SERVICES ROUNDTABLE,

INDEPENDENT INSURANCE AGENTS & BROKERS OF AMERICA,

NATIONAL ASSOCIATION OF MUTUAL INSURANCE COMPANIES,

NATIONAL ASSOCIATION OF PROFESSIONAL INSURANCE AGENTS,

PROPERTY CASUALTY INSURERS ASSOCIATION OF AMERICA,

REINSURANCE ASSOCIATION OF AMERICA,

SURETY ASSOCIATION OF AMERICA, AND

UWC—STRATEGIC SERVICES ON UNEMPLOYMENT & WORKERS’ COMPENSATION

MAY 18, 2004

Thank you Chairman Shelby, Ranking Member Sarbanes, and Members of the

Committee, for your leadership on this important issue of the Terrorism Risk Insurance Program, a program created by the Terrorism Risk Insurance Act of 2002

(TRIA) and that forms a critical element of our Nation’s economic security against

the clear and present danger we face. My name is John Degnan and I am Vice

Chairman and Chief Administrative Officer of The Chubb Corporation (Chubb). I

appear before you today representing our national property-casualty insurance trade

association, the American Insurance Association (AIA), and a broad coalition of

property-casualty insurance trade associations. Together, and for the reasons I will

describe, we urge you to extend TRIA for an additional 2 years so that the market

for terrorism risk insurance remains stable while legislators, regulators, the insurance industry, and U.S. businesses assess available data (including data from all 3

years of the program) and develop a long-term solution to manage terrorism risk.

Enacting an extension now is very important so that: (1) the insurance business

cycle is not disturbed; (2) the financial solvency of the insurance industry and its

ability to respond to other catastrophes is shielded from terrorist attack; and (3)

U.S. businesses remain confident that terrorism coverage will continue to be available and affordable.

The national trade associations on whose behalf I appear before you today represent virtually the entire property-casualty insurance industry, writing all lines of

business in every jurisdiction in the United States. Their members, including

Chubb, offer various types of insurance that provide coverage for terrorism risk pursuant to TRIA. TRIA has helped stabilize the private market for terrorism risk insurance. As the annual renewal cycle for 2005 commercial insurance policies begins

this summer and TRIA’s ‘‘hard’’ expiration date of year-end 2005 looms, insurers

will be forced to make underwriting decisions without the certainty of the Federal

backstop provided by TRIA. Moreover, where that coverage is made available for

time periods subsequent to TRIA’s expiration, the property-casualty insurance

industry will be put at risk. For these reasons, all signs point to a return to the

significant market instability that characterized the post-September 11 insurance

market before the passage of TRIA. A return to the pre-TRIA insurance market will

have a significant negative effect on the national economy, including employment,

similar to that we saw prior to TRIA when billions of dollars of commercial transactions stalled because insurers did not have the capacity necessary to provide commercial property-casualty insurance that included coverage for terrorism losses. Accordingly, we urge Congress to extend TRIA now. A 2-year extension this year will

help avoid destabilizing the insurance market, and, in turn, the national economy,

and will enable Congress, insurers, businesses, and government officials to gather

all available, relevant data—including market data from all 3 years of TRIA as insurer deductibles rise from 7 percent of prior year commercial premiums in 2003

to 15 percent of such premiums in 2005, to analyze that data without fear of market

disruption, and to collectively develop a more permanent solution for managing our

Nation’s economic exposure to catastrophic terrorism. Congressional action now will

avoid a premature expiration of the Federal backstop based on an analysis of incomplete information about TRIA’s impact and the nature of the terrorism risk insurance market and the risk itself.

The tragic attack of September 11, 2001 forced all Americans to directly confront

the previously unforeseen realities associated with a catastrophic terrorist attack on

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U.S. soil aimed primarily at civilians. The attack resulted in the most expensive insured loss, natural or man-made, in U.S. history. Insurers responded to September

11 claims in an unwavering manner, and without the benefit of a single dollar of

Federal assistance. However, the devastating economic consequences of the attack,

the specter of future terrorist attacks and the loss of available reinsurance for terrorism left insurers faced with the real possibility of financial devastation in the

event of another attack of a similar magnitude. The attack also dramatically altered

the future landscape of terrorism risk capacity and insurability, leaving no ready

mechanisms to stabilize the market. Insurers and other businesses were forced to

reexamine the nature of terrorism-related risks, as well as how such risks (which

now more closely resemble war than any other peril) were being spread and managed. In a number of instances, as a matter of financial survival, insurers had no

choice but to restrict the amount of insurance they made available for terrorism

losses, as the risk was viewed as uninsurable and there was no market certainty.

Congress provided definitional parameters of the terrorism risk and some capacity

by enacting TRIA in November 2002, which enabled insurers to return to the market with some financial protection.

TRIA sets up a public/private ‘‘shared loss’’ mechanism whereby insurers are required to make commercial insurance available for losses caused by acts of foreign

terrorism against U.S. targets to the same extent that they provide insurance for

other types of insured losses. For workers’ compensation insurance, coverage for terrorism risk is mandatory, as current State laws generally do not permit insurers

to exclude coverage for war or terrorism risk. In addition, 22 States currently require insurers to provide coverage for damage caused by fire following a terrorism

event and while some of these State laws provide exceptions for fire following

‘‘TRIA-type’’ terrorism, TRIA’s expiration could jeopardize those exceptions. Insurers

are permitted to charge for the coverage they ‘‘make available’’ pursuant to TRIA,

subject to existing State law and regulatory approval, and policyholders are free to

reject it, except where the coverage is required by State law. TRIA’s mandatory

availability provision runs through 2004 and Treasury has until this September to

extend the provision through 2005.

In the event of a terrorist act, the Federal Government will assist the insurance

industry in paying 90 percent of the resulting insured losses, provided: (1) the

Treasury Secretary certifies that an ‘‘act of terrorism’’ occurred; (2) insurers have

complied with TRIA’s conditions for payment of the Federal share, including TRIA’s

‘‘make available’’ and policyholder disclosure requirements; and (3) insurers have incurred losses in excess of an annual individual deductible, calculated as a percentage of the prior year’s direct earned premium for covered commercial insurance

lines. The insurer deductible started at 7 percent in 2003, is 10 percent this year,

and rises to 15 percent in 2005. The public/private shared loss under the program

is subject to an annual statutory limit of $100 billion, with every dollar up to that

limit either being wholly or partially paid by property-casualty insurers.

In essence, TRIA creates a Federal backstop to the private commercial propertycasualty insurance system in the event of further catastrophic terrorist attacks, and

provides some market certainty by establishing statutory caps for insured terrorism

losses that apply to both the insurance industry and the Federal Government.

There is no question that TRIA has helped stabilize the terrorism insurance marketplace. Since TRIA’s enactment, affordable terrorism risk insurance has been

more readily available to commercial policyholders, as insurers have passed on the

benefit of the backstop to consumers. This market-stabilizing effect enabled billions

of dollars of business transactions previously stalled to go forward without threatening the solvency of the commercial enterprises involved or their insurers. A recent

Mortgage Bankers Association (MBA) survey of its 40 largest commercial/multifamily mortgage banking firms revealed that a substantial majority of those survey

respondents believe that TRIA has made terrorism insurance both more available

and less expensive. MBA also noted that failure to extend TRIA would likely have

an adverse impact on the commercial real estate market by recreating the pre-TRIA

environment that had led to rating agency downgrades of commercial mortgagebacked securities due to lack of adequate terrorism insurance. Statement of the

Mortgage Bankers Association, Joint Hearing of the House Financial Services Committee’s Subcommittee on Capital Markets, Insurance, and Government Sponsored

Enterprises and Subcommittee on Oversight and Investigations, ‘‘A Review of TRIA

and its Effect on the Economy: Helping America Move Forward,’’ at pp. 2–3 (April

28, 2004).

TRIA also has helped insurers manage exposure to terrorism risk, and write or

renew high-risk policyholders that might have been uninsurable (or only insurable

on unfavorable terms) without TRIA. This is because TRIA provides individual insurance companies with some certainty as to the dollar amount of risk that they

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retain. Moreover, TRIA’s thoughtful use of the insurance industry’s infrastructure

to deliver the Federal share of compensation to impacted businesses has allowed

Treasury to establish and administer the program with minimal investment and ongoing expense. There is no doubt that the stability TRIA provides to policyholders

and insurers alike has calmed a market struggling to come to terms with the uncertainties of 21st century terrorism and its ongoing challenge to our homeland security apparatus.

While TRIA was designed to be a 3-year bridge to development of what was envisioned as a functional, wholly private sector terrorism insurance market, TRIA has

not—and indeed cannot—change the underlying characteristics of terrorism risk in

the United States. These characteristics weigh heavily in favor of a continued Federal terrorism insurance backstop.

The Commercial Property-Casualty Insurance Sector Continues to Lack

both the Necessary Capacity and Sufficient Marketplace Data to Handle

Catastrophic Terrorism Losses on its Own

Under certain event scenarios, estimated insured losses from another catastrophic

terrorist attack on U.S. soil could exceed $250 billion. Tillinghast Towers Perrin,

Workers’ Compensation Terrorism Reinsurance Pool Feasibility Study, Summary of

Study Findings and Conclusions, p. V (2004) (Terrorism experts have developed

plausible scenarios in which the estimated total insured losses from a single event

could exceed $250 billion.). For example, if the World Trade Center attack had occurred later in the day at lower floors, the losses could have been two to three times

as severe. These levels would approach the entire commercial property-casualty

industry’s estimated capacity of about $150 billion; capacity needed to back all commercial risk. Obviously, the risk of financial ruin for the industry—and the concomitant impact on policyholders, the U.S. economy, and national security—is simply too

great, absent continuation of a Federal backstop. Because insurers must be able to

respond to multiple insured events, sometimes in a short time frame, the traditional

risk spreading mechanism of reinsurance is essential. A significant terrorism event,

the consequences of which can no longer be spread through reinsurance, will compromise the industry’s ability to respond to a subsequent hurricane or other natural

catastrophe.

Moreover, private market mechanisms remain insufficient to spread the risk of

catastrophic terrorism in a meaningful way. In its recently released Workers’ Compensation Terrorism Reinsurance Pool Feasibility Study, Tillinghast Towers Perrin

cited ‘‘lack of capacity’’ as the primary reason why a voluntary workers’ compensation terrorism reinsurance pool would not be a viable mechanism to handle megaterrorism risk. This conclusion is not unique to workers’ compensation insurance,

but would apply to the ability of a pool to address catastrophic terrorism in other

lines such as property and business interruption.

TRIA’s mandated study—to assess the program’s effectiveness, the likely capacity

of the private terrorism risk insurance market after TRIA expires, and the affordability and availability of terrorism coverage—is only in its initial phase and will

be delivered to Congress by Treasury in mid-2005, just months before TRIA is to

sunset. Even then, because the prior year’s market data tends to be available in the

first or second quarter of the subsequent year, Treasury will have little opportunity

to analyze 2004 data before the June 30, 2005 statutory reporting deadline. Equally

important, Treasury will not be able to assess market data from 2005, when insurers must take into account deductibles that rise to 15 percent of the prior year’s

direct earned premium from TRIA-covered lines. Should Congress defer a decision

on a TRIA extension until mid-year 2005, insurers, businesses, and Government officials will not have sufficient time to act on any recommendations and insurers will

have no choice but to act now, under the assumption that TRIA will not be extended. Congress, other governmental officials, insurers, and the businesses they insure need time to consider all available data—the results of studies undertaken by

Treasury and others—and to implement a thoughtful and more permanent solution

to the terrorism problem, without the ‘‘Sword of Damocles’’ in the form of financial

devastation, hanging over their heads. The stabilizing effects of TRIA must remain

in place.

Because the United States Continues to be on High Alert for the

Constant and Very Real Threat of Further Attacks, Catastrophic

Terrorism Remains an Uninsurable Risk in the Traditional Insurance

Marketplace

The Administration has repeatedly alerted Americans to the increased possibility

of terrorist attacks. Since September 11 2001, the United States has been on a constant high state of alert for terrorist activity. In fact, New York remains on an even

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higher alert level than the rest of the Nation. In addition, both Department of

Homeland Security Secretary Tom Ridge and National Security Adviser Condoleezza

Rice recently warned of possible attempts at terrorist activity in the United States

during this election campaign season. And, as President Bush has reminded us, we

are engaged in a long-term war on terrorism and the situation is not expected to

improve before TRIA’s currently scheduled expiration date. War and terrorism are

not fortuitous. Acts of terrorism, like acts of war, are premeditated, planned, and

executed with a specific purpose by individuals (in the case of terrorism) and governments (in the case of war) that have no interest in predictability, discernable

pattern, or advance warning. As war and terrorism are risks of the same character,

both types of risk are uninsurable for the same reasons.

To Date, Terrorism Risk Cannot be Modeled or Predicted with any

Accuracy

Natural catastrophe modeling does not aid the terrorism modeling process. Modeling for natural catastrophes is far more mature than terrorism modeling. Past

natural catastrophes are predictive of the nature, frequency, and severity of future

natural catastrophes. Most natural disasters also occur with at least some prior

warning. Because of this element, insurers can track when and where natural catastrophes are likely to strike, the type of damage they will cause, and which areas

are most vulnerable.

Unfortunately, the same cannot be said for terrorism. Past terrorist attacks are

not predictive of future terrorist attacks and the full range of possible terrorist attacks can never truly be known. Terrorists rely on surprise to maximize the impact

of an attack, so the attack usually comes without warning. In fact, whether an event

is a ‘‘terrorism’’ attack might not be known until after it occurs. This ‘‘man-made’’

threat, which is limited only by the imagination of a terrorist, is one that simply

cannot be forecast.

The relative infancy of terrorism modeling contributes to the risk’s uninsurability.

While modeling firms have worked diligently to produce terrorism risk models to

predict terrorism events in the United States, they have not been able to model accurately for the frequency of terrorist attacks, because it is the terrorists who alone

control that variable. These models instead focus only on predicting the impact terrorism has on its victims. Office towers can be built or retrofitted to withstand

earthquakes in Los Angeles or hurricanes in Miami (making them more insurable),

but few businesses would want to turn their offices into hardened bunkers. Even

then, terrorist excel in adapting to overcome such loss mitigation measures.

The possibility of nuclear, biological, chemical, or radiological attacks (NBCR) reinforces the conclusion that catastrophic terrorism risks are uninsurable. NBCR

demonstrates that even the severity component of a terrorist attack is difficult to

predict. Potential terrorism scenarios now routinely include discussion of NBCR

events. The anthrax attacks perpetrated through the U.S. postal system, (including

the U.S. Senate’s own mail facility), even though limited in scope and severity, only

serve to underscore the random quality and myriad potential consequences associated with such events. As a result, insurers remain reluctant to provide NBCR coverage for terrorism risks in their policies beyond that required in workers’ compensation insurance or already ‘‘made-available’’ for other types of insured loss.

Unlike Other Risks of Loss, Terrorism is an Interdependent Risk

Loss control or mitigation techniques employed by one commercial business may

not protect that business from catastrophic loss. The World Trade Center is the

most compelling—but not the only—example of the interdependent nature of terrorism risk. The World Trade Center was a model of security and disaster planning,

yet nothing done at the World Trade Center could have prevented planes leaving

airports with hijackers aboard, and nothing done at the World Trade Center could

have prevented planes being used as weapons from flying into the towers. The interdependent nature of terrorism risk, with vulnerability measured by the weakest link

in the chain, minimizes the effectiveness of even the best business-by-business loss

control programs.

Information about Terrorism Risk is Incomplete

Contrary to traditional evaluation of insurance risks, information availability and

sharing about terrorism risk is asymmetric. Insurers and policyholders do not have

access to classified information in the hands of the U.S. Government, and therefore

cannot evaluate the risk of terrorism properly. This ‘‘information vacuum’’ makes

risk transfer and management decisions about terrorism a dicey proposition.

Because of these characteristics, terrorism risk defies normal underwriting and

rating principles, effectively limiting the ability of property-casualty insurers to advance a private mechanism for that risk. The combination of these intrinsic characVerDate 11-MAY-2000 16:59 Dec 08, 2005 Jkt 000000 PO 00000 Frm 00088 Fmt 6633 Sfmt 6621 24851.TXT SBANK4 PsN: SBANK4
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teristics of terrorism risk argues in favor of a Federal backstop that will provide

both certainty and stability to the marketplace. A Federal backstop will also help

mitigate the continuing absence of a viable reinsurance market. During the policy

renewal period following September 11, 2001, reinsurers largely declined to provide

capacity against the risk of foreign terrorism in the United States. Reinsurers continue to consider terrorism risk uninsurable in the traditional sense, and are not

expected to provide the market with sufficient capacity when TRIA expires. Thus,

the Federal Government must continue the role it has filled under TRIA: Supplying

capacity that is unavailable in the private reinsurance market in order to provide

the reinsurance protection that is critical as long as even a possibility for catastrophic loss exists.

Aside from the inherent systemic issues associated with insuring catastrophic terrorism and the insufficient capacity reinsurers are able to bring to the market, there

is strong consensus among commercial policyholders, State insurance regulators,

and the insurance industry that continuation of a Federal backstop is essential.

There also is strong consensus that, because of insurance and business cycles, extension simply cannot wait. Congress must take action in 2004 in order to avoid the

kind of market dislocation that was so destabilizing prior to TRIA’s initial passage.

The national trade associations that I am testifying on behalf of today are united

in support of a 2-year TRIA extension that will continue the pattern of certainty

and stability, while giving all parties the time necessary to determine the best

mechanism for managing terrorism risk and preserving national economic security

should such an event occur in the future.

The devastating results of the September 11 attack illustrate the significant

threat that terrorism poses to the security of the Nation’s fiscal health. Businesses—

particularly those considered critical to the Nation’s infrastructure—must be ever

mindful of the devastating impact that a terrorist attack can have on their financial

condition and prospects for survival, as well as the catastrophic ripple effect that

cascading business failures could have on the economy. This is especially true of the

U.S. property-casualty insurance industry. After September 11, the possibility of future terrorist attacks and the loss of available reinsurance for terrorism risk left insurers facing the very real possibility of financial ruin should another event of similar magnitude occur. TRIA helped to significantly ease that financial ‘‘Catch–22.’’

We urge Congress to take immediate action to extend TRIA for an additional 2

years for several important and inter-related reasons discussed below.

TRIA’S ‘‘HARD’’ END DATE IS INCONSISTENT WITH ROLLING EXPIRATION DATES

PROVIDED BY UNDERLYING INSURANCE POLICIES

TRIA has a ‘‘hard’’ expiration date of December 31, 2005, after which date Treasury will be unable to certify any terrorist act. By contrast, the underlying insurance

policies that rely on TRIA are written every day of the year, generally for a 12-

month term (although some commercial property insurance policies covered by TRIA

are multiyear). This sequential mismatch will create confusion for policyholders and

uncertainty for insurers, because policies written before, but extending beyond, December 31, 2005 will have a coverage term that extends beyond the backstop. As

a result, insurers will have no choice but to evaluate every policyholder considered

for coverage during this period as if the backstop does not exist for at least part

of the coverage period.

TREASURY’S ‘‘MAKE-AVAILABLE’’ DECISION ADDS TO THE UNCERTAINTY

TRIA directs Treasury to decide by September 2004 whether to extend current

‘‘make-available’’ provisions to 2005, the third year of the program. A number of

business groups have publicly urged extension of the ‘‘make-available’’ requirement,

because the private terrorism insurance market is not fully stable and is likely to

destabilize in TRIA’s absence. Insurers have expressed concern about the potential

mismatch between policies sold during 2005 and the hard sunset date. For example,

if ‘‘make-available’’ were extended through 2005, carriers would be required to

‘‘make-available’’ terrorism insurance on policies becoming effective on December 1,

2005, even though TRIA would remain in effect for only one month. The ensuing

confusion in terms of coverage, premiums charged, and exposures being assumed

will significantly disrupt the insurance market, particularly for workers’ compensation and commercial property insurance. Despite somewhat differing perspectives on

the ‘‘make-available’’ requirement, policyholders and insurers agree that it is critical

to extend the backstop beyond December 31, 2005. Securing the extension in 2004,

rather than 2005, would avoid difficult implementation of the ‘‘make-available’’ provision during the third year of the program.

The hard end dates for ‘‘make-available’’ (December 31, 2004, unless extended by

Treasury) and TRIA protection (December 31, 2005) do not coincide with State reguVerDate 11-MAY-2000 16:59 Dec 08, 2005 Jkt 000000 PO 00000 Frm 00089 Fmt 6633 Sfmt 6621 24851.TXT SBANK4 PsN: SBANK4
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latory requirements or implementation timelines of property-casualty insurers. PostTRIA policy forms must be approved by most of the States prior to their use in the

market, and that process has already started. New forms submitted for State regulatory review must delineate the scope (if any) of terrorism coverage provided in the

policy. Without a doubt, some of those policy forms are premised on TRIA expiring

at the end of 2005. In many States, insureds must be notified of any unfavorable

changes to the coverage being provided under their policies, including the terrorism

coverage afforded because of TRIA, at least 30 (and in some cases up to 75 or 90

days) days prior to the renewal date for their policy. This effectively means that insurers must start notifying insureds of the changes occasioned by TRIA’s expiration

in October 2004, because 1 year policies incepting in January 2005 may very well

not have TRIA terrorism coverage for at least that part of their term that extends

in 2006.

State cancellation/nonrenewal requirements add more complexity. Insurers that

cancel or nonrenew certain policyholders because of concern about post-TRIA exposure levels will have to comply with a myriad of State cancellation and nonrenewal

notification requirements, generally ranging from 30 days to 90 days. Carriers that

are unable or unwilling to offer the capacity for workers’ compensation and/or commercial property insurance (that, by law, must include at least some insurance for

terrorism) to insureds that have significant terrorism exposures will have no choice

but to cancel or nonrenew these policies, causing additional market disruption. Policyholders who receive such notices will need to seek out other insurers from whom

they can obtain needed coverage.

ONCE POLICY FORMS ARE APPROVED, SYSTEM CHANGES MUST BE IMPLEMENTED

New policy forms (along with any required policyholder notices) will need to be

loaded into insurance company systems, a process that often takes several months,

because many States typically require State-specific policy language (resulting in

multiple versions of the same form) and have State-specific notice requirements.

These changes must be in place before any policies using the new forms can be underwritten consistent with State regulatory requirements.

Implementation of new policy forms will affect the full range of commercial policyholders. For large commercial policyholders, the underwriting process will take several months. Many of the large commercial policyholders that benefit most from

TRIA have relatively complex insurance arrangements that generally require 2 to

3 months of negotiation prior to being finalized. As a result, the first policies that

are likely to be affected by TRIA’s ‘‘hard’’ sunset (that is, those that are up for renewal subsequent to January 1, 2005) will be negotiated in the late summer or early

fall of 2004. In addition, ongoing uncertainties surrounding TRIA’s hard sunset date

may more immediately and adversely impact small to mid-size commercial insurance policyholders. These businesses comprise the majority of the commercial lines

marketplace. They rely on TRIA perhaps to a greater extent than many of their

larger counterparts, because their operating margins are thinner, and they have less

leverage in the marketplace.

INSURANCE, THE UNDERPINNING OF THE U.S. INFRASTRUCTURE, NEEDS A TRIA

EXTENSION UNTIL A LONG-TERM SOLUTION IS IN PLACE

Commercial insurance spreads risk for all critical U.S. infrastructures. If the solvency of the insurance industry were compromised, the ramifications for the U.S.

economy and national security would be catastrophic. Indeed, the importance of

property-casualty insurance to the physical and economic infrastructure of the

United States cannot be overemphasized. Insurance helps immunize the U.S. economy from the adverse effects of the risks inherent in economic growth and development. Insurance also provides the funding necessary to rebuild physical and

economic infrastructure in the event of catastrophic losses to persons or property,

whether caused by hurricane, earthquake, fire, defective products, or other calamity.

Examples of the necessity of insurance to the Nation’s critical infrastructure abound

in every significant economic sector, including:

Construction

Construction projects cannot go forward unless property-casualty insurance is in

place to protect against loss arising out of construction activities. Without insurance

in place, contractors engaged in building projects will not build (because surety

bonds are not available); permits will not be issued (because most statutes require

‘‘builder’s risk’’ and contractor’s liability insurance); necessary financing cannot be

obtained (because lenders typically require insurance as a condition to lending

money) and work cannot commence (because workers’ compensation insurance is a

statutory workplace requirement).

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Commercial Lending

Businesses cannot obtain financing for property acquisitions or new business initiatives, because property-casualty insurance is an essential prerequisite for mortgage and other commercial lending activities.

Real Estate Development and Commercial Leasing Activities

These activities account for nearly one-quarter of U.S. Gross Domestic Product.

The inability of tenants to obtain property-casualty insurance to protect owners of

office buildings and other commercial properties frustrates these activities and

causes significant economic dislocation, particularly in urban areas, as demonstrated by the dramatic slowdown in the New York City real estate market after

September 11.

Employment

Businesses cannot employ workers without providing them workers’ compensation

insurance.

Transportation, Shipping and Transit

Motor vehicles (including trucks, buses and cars) cannot be operated on public

roads without property-casualty insurance because proof of financial responsibility

(in the form of insurance) is a statutory prerequisite.

Business Recovery

In the event a business sustains a property loss to its production facility (for example, in the form of a fire), property-casualty insurance provides that business

with the money necessary to: (1) rebuild the property lost by the fire; (2) preserve

its income stream while the property is being repaired and its operations are being

restored; and (3) meet its payroll obligations to its employees. Without such insurance, employees could very well lose their jobs if the business cannot recover from

the property and income losses sustained from the fire.

Research and Development

The development of pharmaceuticals, software, and other new products, requires

companies to put business assets at risk and expose themselves to new liabilities.

Property-casualty insurance allows businesses to protect against first party losses

to new product prototypes, shields against new legal liabilities created by introducing new products into the stream of commerce, and to otherwise ‘‘hedge’’ against

the risks inherent in innovation and invention.

Global Commerce

Property-casualty insurance plays a critical role in global commerce. The international partners of U.S. businesses and the legal requirements of other countries

make the continued availability and affordability of property-casualty insurance essential to preserving this Nation’s place in global markets.

Terrorism risk is exactly the kind of problem that threatens to compromise U.S.

critical infrastructure. The potential for catastrophic terrorism loss, especially without the benefit of a Federal backstop, exacerbates the solvency challenges faced by

insurers. As noted earlier and based on figures provided by the Insurance Information Institute in its III Fact Book for 2004, currently the U.S. property-casualty insurance industry has approximately $300 billion in surplus. Roughly half that figure

represents monies set aside to cover homeowners and automobile insurance losses,

leaving approximately $150 billion to support all types of commercial insurance

losses, including (but not limited to) losses from terrorism. If an event of greater

magnitude than the September 11 attack were to occur, the ramifications for the

insurance industry, the U.S. economy, and U.S. national security could be dire.

Moreover, if the U.S. property-casualty insurance industry were to become insolvent, the economic reverberations would be felt throughout the world.

In short, without a robust and financially sound property-casualty insurance industry, none of the other aforementioned critical infrastructure industries—which

look to their insurers in the event of a loss to make them ‘‘whole’’ again—would be

able to recover economically from a major terrorist attack, or for that matter, from

any other type of catastrophe. One terrorist attack may very well be enough to

render the insurance industry unable to absorb a subsequent catastrophic loss of

any kind.

Conclusion

TRIA’s public-private partnership is working to stabilize the commercial insurance markets that underpin our entrepreneurial, free-market economy. However, because war and terrorism are societal risks, they remain uninsurable. The aim of a

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1 I am also a board member of The Real Estate Roundtable (The Roundtable) and a member

of the executive committee and treasurer of the National Association of Real Estate Investment

Trusts (NAREIT). Both The Roundtable and NAREIT are CIAT members.

terrorist is not to hurt the insured, but rather to attack the United States. To ask

the insurance industry to absorb loss resulting from an attack against our Nation

(one directed at the United States to alter its behavior) places the U.S. economy and

our national security at great risk. Without a risk-spreading mechanism, the right

attack could very well bring the insurance industry to its knees and significantly

destabilize our economic infrastructure, achieving a primary aim of the terrorist. We

simply cannot afford to let TRIA expire and leave this important matter to chance.

A 2-year extension is critical.

TRIA must be extended in a manner that: (1) avoids the types of market dislocations it was designed to address; (2) protects our ability to both recover economically

from a terrorism loss and respond to other catastrophic events that take place thereafter; and (3) allows insurers, businesses, and government officials to develop a

more permanent solution to the terrorism insurance problem. Because of the regulatory and operational lags that are inherent in the insurance system, Congress

must act in 2004, even though the law itself does not expire until year-end 2005.

Thank you for this opportunity to explain the importance of a 2-year TRIA extension.

—————

PREPARED STATEMENT OF CHRISTOPHER NASSETTA

PRESIDENT AND CHIEF EXECUTIVE OFFICER

HOST MARRIOTT CORPORATION

ON BEHALF OF

THE COALITION TO INSURE AGAINST TERRORISM

MAY 18, 2004

Chairman Shelby, Ranking Member Sarbanes and Senators, good morning, my

name is Christopher Nassetta. I am CEO of Host Marriott, which owns or has interests in over 230 hotels in 34 States and the District of Columbia, and is a publicly

traded real estate investment trust. I am appearing today on behalf of the Coalition

to Insure Against Terrorism (CIAT).1

CIAT Representing Consumers of Commercial Insurance

CIAT is a broad coalition of insurance consumers that was formed in the months

following September 11 to ensure that American businesses could obtain comprehensive and affordable terrorism insurance. As part of its effort, CIAT joined with the

Administration and those in Congress who recognized that only the Federal Government could provide the framework to make this coverage available to all those who

required it. The diverse CIAT membership covers virtually every sector of the private economy as well as public sector buyers of insurance. For example, the U.S.

Chamber of Commerce, the National Association of Manufacturers, and the National

Retail Federation are members. So are, to name a few sectors, transportation interests (for example, the Association of American Railroads, the General Aviation Manufacturers Association, and the Taxicab, Limousine, and Paratransit Association),

utilities (for example, American Gas Association, American Public Power Association, Edison Electric Institute, and National Rural Electric Cooperative Association),

finance (for example, American Bankers Association, America’s Community Bankers, Mortgage Bankers Association of America), real estate (American Resort Development Association, National Association of REALTORS®, Building Owners and

Manufacturers International, International Council of Shopping Centers, and National Association of Industrial and Office Properties) and sports (for example, the

Baseball Commissioner, NCAA, NBA, NFL, and NHL). A full list of CIAT’s member

trade associations as well as other members accompanies my written testimony.

Collectively, the business and governmental organizations represented by the

CIAT membership are the principal consumers of commercial property and casualty

insurance in America, and therefore it is accurate to say that the voice we provide

today is the true consumer voice with respect to the subject of today’s hearing.

After September 11, TRIA Became Indispensable

My own company Host Marriott does not come to this subject untouched by terrorism. We and our employees were deeply and personally affected by the terror attacks of September 11. Although we were not specifically targeted by the terrorists,

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we did not escape the terrible consequences of their acts. Host Marriott lost our 820-

room Marriott World Trade Center Hotel which was completely destroyed, and our

Marriott New York Financial Center Hotel was heavily damaged. Much more importantly, we suffered the loss of two hotel employees and eleven hotel guests were unaccounted for.

After first addressing the human issues, we needed to reassure markets that our

properties were fully insured, and I spent many hours on the phone with shareholders and analysts. In each instance, they wanted to know whether our policies

fully covered terrorist attacks. Fortunately, our property and casualty policies then

in effect did cover losses resulting from acts of terrorism. After the horrific attacks,

the insurance market changed dramatically. Terrorism risk was excluded from renewal offers on most of our policies, and the only coverage we could find was either

‘‘stand-alone’’ policies or ‘‘buy-back’’ endorsements, and such policies left us with

considerably less protection than we had before September 11.

All of CIAT’s members were united in their support for the enactment of the Terrorism Risk Insurance Act of 2002. All remain equally determined to see the TRIA

program continue for the intermediate term because the conditions that made it

necessary still are with us. The threat of foreign terrorist acts in the United States

has not diminished; if anything, it may have increased since TRIA was enacted. At

the same time, the insurance market has not recovered, at least not with respect

to this peril. While some limited reinsurance capacity has returned, nothing near

what is needed to sustain the economy is foreseeable under current conditions.

In today’s world, CIAT believes TRIA or something like it has become indispensable. That is because our economy and businesses are at risk for unique man-made

catastrophic events of unknown dimension and frequency which the insurance industry is unprepared, understandably, to handle on its own. Our national leaders

tell us repeatedly that terrorism will be a threat to us for the foreseeable future.

At the same time, our Nation is undertaking significant efforts both to prevent and

to prepare for terrorism. We believe that TRIA is an important component of this

national effort, as TRIA both helps the economy move forward in the face of terrorism and helps us prepare economically should there be another catastrophic

event. Without TRIA we believe the wheels of commerce, including the active development of new businesses and the jobs they bring with them, will be slowed jeopardizing our Nation’s economic security.

On behalf of CIAT’s members, let me thank this Committee and the entire Senate

for enacting this successful law. But I would be remiss if I did not specifically acknowledge that the President provided critical personal leadership in getting the

program enacted. President Bush recognized the importance of this effort, not just

from the perspective of an insurance market unable to underwrite accurately and

assume the whole risk, but because he knew our economy needed to be secure then

and in the future. We thank you and him for these efforts. They succeeded well.

Importance of Immediate Extension of ‘‘Make-Available’’

Before I explain how TRIA has succeeded, I would like to address a pressing and

related matter. The members of CIAT are increasingly anxious about the looming

prospect that our ability to obtain comprehensive and cost-effective terrorism coverage will be diminished substantially in 2005 unless the Secretary of the Treasury

moves affirmatively to extend the so-called ‘‘make-available’’ provision in TRIA. The

Act provides that he is to make this determination by September 1, 2004. If the

‘‘make-available’’ provision is allowed to expire this year, American businesses face

the alarming prospect that terrorism insurance policies again will become scarce, if

not unavailable altogether—a full year earlier than TRIA’s termination date. Further, it is likely that financial markets will react negatively in the final quarter of

2004 to the prospect that insurance may not be available.

Absent an extension, primary insurers would no longer be mandated to make terrorism insurance available on the same terms and conditions as other insurance. Although we had hoped initially, like all who were involved in the passage of TRIA,

that a significant private market for terrorism reinsurance would emerge in a postSeptember 11 TRIA environment, this has not happened. Consequently, we are seriously concerned that with the absence of a ‘‘mandate’’ in 2005 under TRIA and with

the paucity of private market reinsurance available, primary insurers will not offer,

or ‘‘make-available,’’ significant, comprehensive terrorism insurance for the 2005

marketplace. In fact, we know from the example of the continuing exclusion of biological, chemical, radiological, and nuclear risks how markets will react if there is

no mandate (and continuation of backstop).

Accordingly, I respectfully urge Members of this Committee and indeed all of the

Senate to recommend to the Secretary of the Treasury that he extend the vital

‘‘make-available’’ provision of TRIA this year. A bipartisan effort already is underVerDate 11-MAY-2000 16:59 Dec 08, 2005 Jkt 000000 PO 00000 Frm 00093 Fmt 6633 Sfmt 6621 24851.TXT SBANK4 PsN: SBANK4
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2Summary Report to the CEA Governing Board: Stakeholder Comments at Roundtable Summit Meetings, June 6, 2003, p. 5. Available: www.earthquakeauthority.com/pdfs/FinalRndtbl

Rept6–19–03.pdf. 3 U.S. General Accounting Office, Flood Insurance: Challenges Facing the National Flood Insurance Program, GAO–03–606T (Washington, DC: April 1, 2003). GAO did not attribute the

low NFIP participation rate to a lack of need for Federal flood insurance, but rather lack of

awareness or information on the part of policyholders and complexity of the NFIP. Similarly the

early participation rates under TRIA, in part, may reflect the newness of the program and inexperience or informational deficiencies for both insurers and customers. The increases in particiway in the House in calling on Treasury Secretary Snow to extend the ‘‘make-available’’ provision of TRIA for the third year of the Program. These House Members

have urged the Secretary to take that action as soon as possible rather than leave

it for the September 1 deadline. This will ensure that the insurance industry will

be prepared in 2005 to provide American businesses with one of the crucial tools

necessary to help protect the American economy and American jobs from the ugly

and harmful specter of terrorism.

How TRIA Helped The Market

Prior to September 11, coverage for acts of terrorism was routinely included in

all property and liability insurance policies. As I said, after those horrific attacks,

terrorism risk was generally excluded from the renewal offers on all of these policies, and the only coverage that could be found was either ‘‘stand-alone’’ policies or

‘‘buy-back’’ endorsements, and even taking up what coverage was offered on those

terms left us and others with substantially less protection of our assets and operations than had been the case before September 11. Even when some coverage was

available, it was not as broad or secure as before and the costs were dramatically

higher. Moreover, there was no consistency or apparent rationality to the prices on

various layers and programs of coverage.

With respect to Host Marriott’s own program, our property insurance costs nearly

tripled in the policy year following September 11, even though on a property portfolio insured for $8.6 billion for other (nonterrorism) perils, we had stand-alone terrorism insurance for only about 31⁄2 percent of that portfolio value, and that now

excluded biological, chemical, and radiological risks.

I have no doubt that virtually all other commercial buyers in the market had the

same experience as Host Marriott. The consequence of this was not just decreased

coverage protection and increased cost for us and other buyers. In many cases, it

also meant that we in the business community could not, for example, provide lenders and other business partners with evidence of insurance consistent with loan documentation requirements. This led to a slow-down of development activities, job

losses, and other consequences throughout the post-September 11 economy.

After TRIA was enacted the market very quickly normalized, for the most part.

The combination of the Federal reinsurance backstop and the law’s requirement

that all participating property and casualty insurers ‘‘make-available’’ terrorism insurance in every commercial policy, led to restoration in available limits in most

cases and, importantly, a return to something like a rational or consistent pricing

of this coverage in the market in the 18 months since TRIA came into effect. To

be sure, the process has been gradual as insurers, brokers, and buyers have adjusted to the Act’s requirements and considered the evolving prices and other terms.

The most recent information from Marsh, Inc., the world’s largest insurance brokerage firm, shows that the take-up rate for terrorism coverage continues to rise as this

adjustment process continues. For example, a recent Marsh study of 2,400 U.S. businesses found that, from the second quarter to the fourth quarter of 2003, the percentage of businesses purchasing terrorism coverage rose another 5.4 percent, from

27.3 percent to 32.7 percent. I believe that if you looked specifically at major businesses or at publicly traded companies with boards and managements subject to

Sarbanes-Oxley responsibilities, you would find even higher rates of purchase.

In assessing the success of TRIA, Congress should keep in mind that it is early

in the TRIA experience. Consider the comparative experience for other governmentbacked insurance programs dealing with specific-perils. Two examples are instructive. First, the California Earthquake Authority, which is a publicly managed entity

established by the California Legislature to ensure that earthquake coverage is offered to all residential policyholders, reports that just 14–17 percent of eligible California homeowners have earthquake insurance.2 Second, according to a recent GAO

report, the Federal Emergency Management Agency, a unit of the Homeland Security Department, estimates that one-half to two-thirds of property owners in eligible

flood-prone areas do not have flood insurance coverage under the National Flood Insurance Program (NFIP), even though NFIP coverage is mandated for all FHA or

GSE-backed loans for homes in special flood hazard areas.3 This participation rate

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pation rates during 2003 reported by Marsh suggest this may be the case rather than lack of

ultimate demand for the coverage. 4See Terrorism Risk Insurance Program Interpretive Letter, dated March 24, 2004, available

on the Department of Treasury’s website at: www.treas.gov/offices/domestic-finance/financialinstitution/terrorism-insurance/pdf/redactedci.pdf. 5TRIA calls for a comprehensive study and report by the Treasury Department to Congress

in June 2005. Unfortunately, it is now clear that date will be too late for Congressional action,

if serious market dislocations are to be avoided. We believe that Treasury study may provide

valuable guidance for any eventual long-term solution but should not deter Congress from providing the 2-year extension in the meantime.

for the NFIP, which has been in operation since 1968, would be roughly comparable

to the recent take-up rate reported by Marsh for the new TRIA-backed commercial

terrorism insurance. Moreover, the NFIP flood insurance is not evenly distributed

across the country. As of March 2001, Florida accounted for roughly 41 percent of

total NFIP policies in effect nationwide.

Biological, Chemical, Radiological, and Nuclear Risks

TRIA has certainly led to a general availability of terrorism coverage and has produced relative stability in pricing for that coverage. Unfortunately, it cannot be considered a complete success, from the perspective of CIAT’s broad membership, because of the continued exclusion by insurers of biological, chemical, radiological, and

nuclear (or B/C/R/N) risks from the terrorism insurance being offered.

In the early months of TRIA, there was some confusion among various parties and

even some commentators about whether the TRIA backstop was available for these

B/C/R/N risks, whether as WMD’s or otherwise. CIAT itself sought and obtained

from the TRIA Office an unequivocal affirmation that B/C/R/N terrorism is an insurable risk which will be eligible for indemnification under TRIA.4

While this may clear up some misunderstanding that existed on the margins in

the market, it is equally clear that most major insurers understand that the indemnification is available for these perils but that they, at least for now, have no plans

to offer coverage of B/C/R/N perils because of the deductibles they retain and because of the lack of non-Federal reinsurance. State regulators have, since TRIA was

enacted, approved specific exclusion clauses which allow exclusion of most B/C/R/N

risks from most commercial lines property and casualty policies. The main exception

is workers’ compensation where the coverage is defined by statute and is not allowed to exclude these perils.

We point this out not to criticize the insurers, or the State regulators, but to illustrate the still tenuous nature of the market and of the insurance industry’s limited

capacity or willingness to accept terrorism exposure. We believe this observation

only reinforces the conclusion that the private insurance and reinsurance market is

not yet ready, nor will it be by 2006, to offer terrorism insurance to the U.S. economy without some continued indemnification from the Government under TRIA. The

experience also illustrates that whether coverage is available is largely a function

of the interplay of the continued Federal backstop and the mandatory offer or coverage requirements of both State and Federal law.

Critical Importance of 2-Year Extension of Overall Program in 2004

We are staring the calendar in the face. TRIA is currently subject to a scheduled

‘‘hard’’ expiration on December 31, 2005. It is a ‘‘hard’’ expiration in the sense that

no terrorist event after that date will be federally indemnified even under a policy

which is still in effect on that date and which otherwise covers terrorism. The insurance industry has already proposed to State regulators, through the collective body,

Insurance Services Office (ISO), to begin using policy forms beginning January 1,

2005 that would exclude or cut off terrorism coverage on January 1, 2006 on policies

that run past that date. (While the calendar year is common in insurance programs,

the majority of commercial policies have renewal dates other than January 1.)

Worse, our fear is that in many cases insurers may withdraw from particular lines

or particular customers rather than bother with negotiating over these ‘‘sleeping’’

exclusions that have been proposed to regulators. Thus, commercial insurance buyers face potentially severe dislocations and availability problems not in 2006 but as

soon as negotiations for 2005 insurance programs commence; that is to say, later

this year, if the overall TRIA program is not renewed before then.5

Thus, we believe that Congress should enact that extension now, this year, to ensure that everyone who needs coverage can buy it. Only this will avoid gaps in

availability during the 2004–2005 insurance renewal season. Any uncertainty during the coming year could impair economic activity—especially new commercial construction—and job growth, as clearly occurred between September 11 and November

2002 when TRIA was enacted.

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6OPIC is currently authorized through 2007—two years after TRIA is currently set to expire—but has project commitments, including insurance coverage, for up to 20 years into the

future.

A Federal Role Remains Necessary

From CIAT’s perspective, TRIA has been not only a great success, but also an economic necessity in helping to manage each industry’s—and our Nation’s—economic

risks from terrorism. Looking forward, we see no evidence that private insurance

markets will be able to provide adequate terrorism insurance.

Some claim to know what U.S. cities or buildings are at risk and what areas are

not at risk. Neither I nor other CIAT members pretend to have that kind of knowledge. The knowledge we do have is that the terrorist mind is dynamic. Its targets

and methods of attack evolve with the conditions. As potential targets harden, other

softer targets or geographical areas come into focus. Given this reality it seems

shortsighted indeed to try to microdesign a program today for specific risks that we

know will evolve in the future. To suggest that terrorism insurance is relevant to

only nine U.S. urban areas is ludicrous. Host Marriott has hotels in 34 States and

the District of Columbia, and the CIAT coalition has national membership active in

all 50 States including rural organizations, such as the rural electric cooperatives,

that are vitally concerned with the availability of this insurance coverage. What we

need, and need urgently, is a continuation of TRIA, to help us be prepared for whatever might come.

Clearly, terrorism is a risk that arises from persons or groups who have declared

war on the United States—making U.S. economic interests at home and abroad the

new battleground. Recent attacks in Jakarta, Istanbul, and Spain have demonstrated that terrorists remain intent upon waging this war. As Secretary of

Homeland Security Tom Ridge said recently in a speech at the Port of Portland (Oregon):

[T]he terrorists in part targeted the free and democratic elections in

Spain—again striking at the elements of our society that they hate the

most. As we enter a season dominated by these symbols—the Olympics, political conventions, and our own presidential election—we must remain on

heightened alert so that these very foundations of our freedom do not become targets for the enemy.

However, unlike hurricanes, earthquakes, and floods, we do not know how another attack will manifest itself—we do not know where, when, or how catastrophic

an attack will be—all we know is that another attack is likely coming. Despite early

attempts by modeling firms to produce terrorism risk models that can accurately

predict terrorism events in the United States, they are unable to model accurately

for the frequency or severity of such attacks, absent more reliable data. Unfortunately, even as we make every effort to eliminate the threat of terror, the terrorists

themselves may substantially influence those variables.

The private sector has not been idle in the meantime. For example, serious work

has been done exploring alternatives to TRIA, such as the possibility of a privately

funded terrorism reinsurance pool for the workers’ compensation insurance market.

This is a line of coverage crucial to every employer. The preliminary conclusions,

however, suggest that even this may be beyond the capability of the private economy without some Government assistance. At a minimum, more time is needed to

develop solutions, and only an extension of TRIA will provide that time.

Whether or not private markets are able to meaningfully price in the future the

risks associated with this war, we need to think about what condition insurance

markets will be in after another such attack. Insurance is a critical element in the

business of this Nation. As we spend billions creating the Department of Homeland

Security, we need to consider also the experience and example of other nations, such

as the UK, France, Germany, Israel, Austria, South Africa, and Spain—and recognize that this is not solely a ‘‘market’’ issue—clearly, this is a matter of managing

the Nation’s economic risk and preparing our Nation’s economy for war of this nature. Each of these countries, and others, have established ongoing governmentaided terrorism insurance (or reinsurance) programs. Attached is an addendum

briefly describing each of these foreign programs.

It would be ironic if Congress declined to give the domestic economy the security

of knowing next year that the Government will continue to support terrorism insurance risk. That is because Congress has provided long-term insurance protection for

U.S. investors against terrorism and other forms of ‘‘political violence’’ when U.S.

business invests overseas. The Overseas Private Investment Corporation (OPIC), a

Federal Government agency, has been providing this protection to U.S. investors for

their overseas projects since 1971.6 It certainly seems consistent to us that the U.S.

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Government, while it continues to provide multiyear insurance coverage for acts of

terrorism overseas, should also at the very least provide a short-term extension of

reinsurance coverage for terrorist events on our own soil. TRIA should be extended

at least through the current authorization of the OPIC program, that is 2007. As

President Bush has repeatedly reminded us, the war on terrorism is a long-term endeavor, with little expectation that the situation will improve with any certainty before TRIA’s currently scheduled expiration date.

Terrorist attacks are not attacks on individual companies or buildings but rather

on our national policies and the way of life in America. When considered in this

way, it is only natural that a national policy of shared risk be established—and be

maintained—until the threat is removed. A major reason that terrorists attack us

is to disrupt our economy. Having mechanisms, such as TRIA, in place that allow

our economy to continue in the face of threats and to recover from actual attacks,

enhances our economic security. This is no time to retreat from what we resolved

to do after September 11. As a country we must maintain the efforts which will secure our economy. TRIA is an important part of that national resolve. For these reasons, CIAT urges you to act quickly to extend TRIA for 2 additional years.

Conclusion

TRIA has been a success, and we commend the Chairman and Ranking Member

for holding this very important hearing today. We remain concerned, however, that

an adequate private reinsurance market for terrorism has not emerged in the 18

months since TRIA’s enactment, and for this reason as well as the other reasons

stated above, action this year is imperative in two respects: (1) the Treasury Secretary should extend the ‘‘make-available’’ provision as soon as possible; and (2)

TRIA should not be allowed to sunset in 2005; rather, Congress should provide a

seamless, 2-year extension of TRIA, which contains the ‘‘make-available’’ requirement, before adjournment this year.

Neither we in the private sector nor Congress should sit idle during the time after

TRIA is extended. This 2-year extension will give policymakers, insurance markets

and their regulators, and we customers the extra time needed to revise or modify

the program or to develop a wholly new and more permanent solution to this critical

need of the economy. Thank you, Mr. Chairman. I would be happy to respond to

the Committee’s questions.

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PREPARED STATEMENT OF JACQUES E. DUBOIS

CHAIRMAN AND CEO, SWISS RE AMERICA HOLDING

MAY 18, 2004

Good morning Chairman Shelby, Ranking Member Sarbanes, and Members of the

Committee. My name is Jacques Dubois and I am Chairman and CEO of Swiss Re

America Holding Corporation. We have filed written testimony for the record. Thank

you for your leadership on this urgent matter and for giving us this opportunity to

comment regarding the Terrorism Risk Insurance Act.

First, a few words about Swiss Re. Founded in Zurich, Switzerland in 1863, Swiss

Re has insured risks in the United States since 1880. Today, Swiss Re has global

revenues of approximately $28 billion and total assets of $130 billion. Swiss Re is

the world’s second largest reinsurer and the world’s largest life and health reinsurer

and is also North America’s largest reinsurer. Our company insures risks globally,

operating from 70 offices in 30 countries. We employ 2,300 people in the United

States and 9,000 worldwide. We are also members of the Reinsurance Association

of America and the American Council of Life Insurers.

More to the point of today’s hearing, Swiss Re has responded to virtually every

major U.S. catastrophe over the last 100 years. In fact, for Swiss Re, prior to September 11, our largest single loss relative to capital was the San Francisco earthquake in 1906. Swiss Re plays an important role in the U.S. insurance industry and

is active in discussions regarding terrorism risk and terrorism losses. Our September 11 claims totalled $3.3 billion and we were the largest insurer of the World

Trade Center.

Although reinsurance is not subject to TRIA, Swiss Re has a keen interest in the

law for two reasons:

• First, U.S. terrorism risk stems, in large measure, from terrorists’ efforts to influence government policy. Terrorist attacks seek to undermine U.S. institutions and

culture. Prior to September 11, terrorism had not been perceived as a significant

risk. But September 11 demonstrated the enormous potential for loss caused by

terrorist attacks. We feel very strongly that Government must play a partnership

role with the insurance industry in coping with these losses. Insurers, reinsurers,

property owners, business owners, employees, and government and its institutions—all of us are at risk for terrorism.

• Second, in short, TRIA has worked. TRIA has provided protection to insurers that

limits losses in the event of an additional terror attack. This has allowed insurers

to perform their traditional roles in bearing risks against losses from perils that

the industry can effectively price and underwrite such as hurricanes, floods, fire,

auto accidents, and other events.

As a reinsurer, we are not required to provide terrorism reinsurance coverage.

And, for the most part, we do not now provide terrorism reinsurance because we

cannot quantify the frequency or severity of possible events. There are a few exceptions:

• We provide partial protection for clients in containing their TRIA retention exposure.

• We provide modest catastrophe cover for our group life clients.

In both cases, what we provide is a fraction of what our customers need and want

and what we had provided prior to September 11.

What these two exceptions have in common is that we can quantify our maximum

exposure. To accept risk without fully understanding our exposure would be irresponsible to our shareowners and to our customers.

The impossibility of predicting frequency and severity of terrorism attacks is the

primary reason why the reinsurance market has been cautious in offering terrorism

risk protection. Although much work has been done on models to assess terrorism

risk, forecasts of the frequency, and the magnitude of terrorism losses are extremely

problematic. Statistical data is simply unavailable to begin to quantify this risk.

And we must accept the fact that it may never be possible to capture, in a model,

the intentions of human minds that strive to inflict maximum devastation and

human suffering.

Nevertheless, a limited reinsurance market for terrorism risk has developed. Insurers can buy some terrorism coverage for their TRIA retention. They must, however, retain a substantial amount of the risk. Covers are usually subject to limits

per event as well as an annual aggregate limit. Further, most contracts have exclusions for events involving nuclear, radiological, biological, or chemical weapons. But,

in total, the coverage available is insufficient even to cover TRIA’s deductibles.

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Swiss Re’s position is that the insurance and reinsurance market is not currently

prepared to absorb terrorism risk regardless of our limited improvements in our

ability to assess risk. The attack on the WTC caused insured losses estimated at

up to $40 billion including $21 billion in property and business interruption lines

alone. Total insured and uninsured losses have been estimated at about $100

billion. Loss estimates from September 11 exceed the largest losses from natural catastrophes the industry has ever suffered: Hurricane Andrew 1992: $21 billion;

Earthquake Northridge 1994: $17 billion; Winter storms in Europe 1999/2000: $9

billion.

Potential losses from a terrorism attack conceivably could be much larger than

total insured losses of September 11 or the largest conceivable natural catastrophe

loss. Swiss Re is currently co-sponsoring with nine other organizations a study by

RAND Corporation aimed at assessing terrorism risk and loss potentials. Study results will be released over the next 2 years. In addition, Swiss Re assisted in

another study by RMS, a leading risk modeling organization, which also analyzed

terrorism scenarios. This study found that insured losses of $80 billion are possible

for worker’s compensation and life insurance lines of business. Further, LOMA, a

research and education association for the life insurance and financial service industry, has also released a study on terrorist events such as a smallpox attack that

could result in deaths in excess of 30 million. Just as with September 11, these

losses have not been factored into insurance prices and cannot be absorbed within

the industry’s capacity.

This issue is extraordinarily complex. We know that if a major terrorism event

were to occur, it would likely hit several insurance lines of business simultaneously,

as illustrated by the WTC event. The September 11 tragedy caused insured losses

in individual life, group life, aviation, property, business interruption, workers’ compensation, and accidental death. In the light of these uncertainties, our cautious approach toward terrorism risk is dictated by our responsibility to our shareholders,

clients and employees.

We urge you to pass a 2-year extension of TRIA. The extension will allow TRIA

to continue to provide protection to the insurance and reinsurance industry as well

as to provide additional time to assess terrorism risk.

Certain group life writers have petitioned for inclusion of group life insurance in

TRIA. We support their petition. Adding group life to TRIA will provide group life

insurers the protection they need to insure the lives of people in the workplace.

Group life insurers are not free to manage their risk through terrorism exclusions.

State regulators will not allow it. As a public policy matter, State regulators have

decided that this basic insurance now covering 158 million Americans is vital. The

regulators are right. Group life should be included in TRIA. In fact, Swiss Re believes that individual life insurance should also be included but we await the conclusions of the RAND Corporation and U.S. Treasury studies.

In closing, Congress should extend TRIA for an additional 2-year period. Swiss

Re is committed to working with the Federal Government to develop solutions that

involve all stakeholders. In the weeks and months following September 11, Swiss

Re met with Members of Congress and the U.S. Treasury to discuss possible approaches to this challenge. We recommended that the Federal Government consider

adopting the UK’s working solution, Pool Re. Pool Re and other solutions should

again be considered. We believe that a public-private partnership between the Federal Government, industry and insured parties is the best way to deal with the risks

involved. We believe Government has an ongoing role and responsibility due to the

relationship between Government policy and the motivations and actions of terrorists.

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RESPONSE TO A WRITTEN QUESTION OF SENATOR SANTORUM

FROM J. ROBERT HUNTER

Q.1. What is the rationale for excluding group life carriers from

TRIA coverage? It is my understanding that State insurance commissioners do not allow group life carriers to exclude terrorism act

coverage from these policies even though these outstanding contracts expose companies to billions of dollars in losses. If TRIA is

to be extended, should serious consideration be given to including

group life carriers in the program?

A.1. The rationale for excluding group life insurance coverage from

TRIA is the same as the rationale the NAIC used in deciding to

not allow exclusions for terrorism insurance; the industry does not

need backup or exclusions.

The group life situation vis-a ́-vis terrorism risk is a classic example of a problem that the private sector can solve by itself without

Government help. Here is why: A group life carrier might have an

extreme exposure in a city, say Manhattan. Other insurers might

have extreme exposures in other places, like Chicago, Los Angeles,

Miami, Philadelphia, and so on. These insurers are free to pool

these exposures with each other in a way to spread this risk across

the industry and all over the country.

The NAIC wisely denied the request for terror exclusions from

group life policies because the industry had not done due diligence

to determine how to pool these risks to spread the risk and make

exclusions unnecessary. The NAIC saw that a private sector solution was feasible and should be undertaken.

For the same reason, Congress should not step in to this situation, which can be easily dealt with privately.